
    The Town of North-Hempstead and the Freeholders and Inhabitants thereof, by John B. Kissam, supervisor, and John J. Schenck, town clerk thereof, appellants. and The Town of Hempstead and the Freeholders and Inhabitants thereof, by John D. Hicks supervisor, and Edward Clowes, town clerk thereof, who are impleaded with Jacob S. Jackson, respondents.
    
    
      A grant by the sovereign authority of the state to A. B. and five others, as patentees for and on behalf of themselves and their associates, the freeholders and inhabitants of the town of Hempstead, is a valid grant, being made to individuals by name, as trustees for the freeholders and inhabitants.
    The grant being of lands from the sovereign authority of the state to individuals, to be possessed and enjoyed by them in a corporate capacity, the grant itself conferred a capacity to take and hold in a corporate character,
    
      Cestuis que trust who have paid the consideration of lands conveyed, may claim the benefit of a resulting trust, and will be considered as holding the legal estate so far as to enable them to defend or maintain an action of ejectment for lands thus held.
    
      Towns, under the laws of this state, are considered corporations for certain purposes, and the authority conferred on them to make regulations respecting their common lands, of itself, is suificient to create a capacity in them " to take and hold common lands.
    A charter issued in 1644, by the Dutch governor of the then province of NetoNetherlands, to R. P. and five others, their heirs, executors, administrators successors or associates, or any they should join in association with them, conveying a territory comprehending the bounds of the original town of Hempstead, giving authority to erect a body politic, and to nominate magistrates, ratified and confirmed by the English government in 1685, by a grant to six individuals in behalf of themselves and their associates, the freeholders and inhabitants of the town of Hempstead, constituted the town of Hempstead a corporation, and the territory granted became the property of the freeholders and inhabitants in their corporate capacity, but did not belong to any or either of themin their individual capacity, nor were the corporators tenants in cominoit of the'property granted.
    Where a corporation, whose jurisdiction extends over a tract of country, comprising within its bounds lands and other property, held in its corporate character, is divided into two distinct and separate communities, each community is entitled to hold in severalty the public property which falls ■within its limits.
    By the statute authorizing the enactment, by towns, of rules and regulations respecting the use of common lands, exclusive jurisdiction on this subject is given to the town within which the property is situated.
    
      Where a division of a town possessing corporate property was made in 1784, dividing it into two towns, and part of the corporate property, on such division, fell within the bounds of each town, and each town, for a period of 37 years, regulated the common property within its own limits, and neither town, either by resolutions in town meeting, or otherwise, interfered with the other, by claiming a right to participate in the control or enjoyment of the corporate property lying without its bounds ; it was held, that such right, if it did exist after the division, was barred by lapse of time.
    Appeal from chancery. The appellants filed a bill in chancery for a partition of the plain lands, marshes, meadows and beach comprised within the bounds of the town of Hemp-stead, as originally granted. The town of Hempstead having, by an act of the legislature, passed in 1784, been divided into two towns, one of which was called South Hemp-stead, and the other North Hempstead, the freeholders and inhabitants of the latter town claimed to be entitled to an interest in the plain lands, marshes, meadows and beach situate in the former town, and, by their bill, prayed a partition of the same between the town of North Hempstead and the freeholders and inhabitants thereof, and the town of South Hempstead and the freeholders and inhabitants thereof, so that a certain and separate share or portion of the same might be defined and set apart as the exclusive common right and property of each of the said towns, and the freeholders and inhabitants of each respectively. The bill also contained a general prayer for relief.
    On the 16th November, 1644, letters patent, or, as denominated in the bill, a ground brief, was issued by William Kieft, (or Keist,) governor of the province then called New-Netherlands, to Robert Fordham and five others, their heirs, executors, administrators, successors or associates, or any they should join in association with them, a certain quantity of land, with all the havens, harbors, rivers, creeks, woodland, marshes, and all other appurtenances thereunto belonging, lying and being upon and about a certain place called the great plains on Long Island, from the East River to the South Sea, (comprehending the bounds of the town of Hempstead as they existed previous to the division of the same into two towns,) perpetually to enjoy in as large and ample manner as their own free land of inheritance ; giving and granting to the patentees, their associates, heirs and sueeessors full power and authority to erect a body politic or civil combination among themselves, and to nominate magistrates to the governor for the time being, to be appointed by him for the execution of government among them, as well civil, political, as judicial. This patent or ground brief also contained many other grants of powers, privileges and franchises to the patentees, their associates, heirs and successors, touching their government, the execution of the laws'and the exercise of rights and authority. The answer admitted, that by the letters patent of Gov. ICiest, the tract of country thereby granted was erected and became an incorporated town, and the inhabitants thereof a body politic, capable (by the laws and usages then in force) of purchasing, holding and disposing of lands and real estate for their common benefit, or for the public use of all the inhabitants of the town and their successors, in like manner as corporate bodies erected and created according to the laws mow in force in this state, may purchase, hold and dispose of real estate; that shortly after the issuing of the letters patent, the inhabitants of Hempstead adopted the necessary measures for erecting themselves into a body politic, and nominated magistrates, who were duly appointed, and exercised the powers conferred by the grant; that the practice of nominating and appointing magistrates gradually fell into disuse, and the powers and duties of the magistrates devolved upon and were exercised by town meetings of the freeholders and inhabitants of the town.
    Previous to 1685, considerable portions of the lands comprehended in the patent of Gov. Kiest had become individual property by appropriations made by the landholders and inhabitants, convened from time to time in town meetings, by the votes of the persons assembled, to individuals of the in-N habitants, who, under sanction of such appropriations, enclosed, improved and cultivated such portions, and acquired, or were considered to acquire, estates of inheritance in the same. After the power and authority of Great Britain was re-established in this country, application was made to Gov. Dongan, governor of the then province of New-York, for letters patent granting or confirming the lands contained in the original patent; and accordingly, on the 17th April, 1685, letters patent were issued to John Jackson and five others, as patentees, for and on the behalf of themselves and their associates, the freeholders and inhabitants of the town of Hemp-stead, their heirs, successors and assigns forever, giving, granting, ratifying and confirming unto them the lands described in the patent of Gov. ICiest, and which, in the patent of Gov. Dongan, were recognized “ as a certain town in Queens county, called and known by the name of Hempstead, having a certain tract of land thereunto belonging,” except certain portions of the same which were reserved to the Duke of York; and confirming and granting unto the patentees and their associates, their heirs, successors and assigns, all the privileges and immunities belonging to a town within the government of the province, reserving a quit-rent of twenty bushels of good winter wheat, or four pounds in good current money of New-York. John Jackson survived the other grantees or patentees specially named in the patent of Gov. Dongan, and Jacob S. Jackson, one of the defendants below, is the heir at law of John Jackson.
    As soon as a colonial legislature was organized in the colony of New-York, the assembly passed an act on the 6th May, 1691, for settling, quieting and confirming unto the cities, towns, manors and freeholders within the province, their several grants, patents and rights respectively ; by which act it is enacted, that all charters, patents and grants executed under the seal of the king of England, and registered in the secretary’s office, unto the several and respective corporations or bodies politic of the cities, towns and manors, &c. shall be deemed effectual charters in the law, &c.
    On the southern margin of the tract of land embraced in those patents, there is an extensive beach stretching east and west the whole extent of the south side of the town of Hemp-stead, between which and the main land of Long Island is a large bay, on the northerly side of which there are large quantities of salt meadows, and detached from them, in the bay, are numerous pieces of marsh, which produce a species of grass called sedge, and about the centre of the lands granted is a tract of plain, open and unwooded land, of great extent, known by the name of Hempstead plain, used and occupied as common lands by the freeholders and inhabitants of the original town of Hempstead, for the pasturing of sheep and other cattle, and for mowing of grass, and converting the same into hay.
    From the issuing of the letters patent under the authority -of the English government, until the division of the town of Hempstead into two towns, the freeholders and inhabitants of the original town of Hempstead exercised acts of control over the undivided plain lands, meadows, marshes and beach, by their vote in toim-meetings assembled, as the common right and property of the town, and, in like manner, granted, divided and appropriated to individual uses, parts and portions of the same, and prescribed and regulated the use and management, and the times and manner of using other parts or portions thereof.
    On the application of the inhabitants of the now town of North Hempstead, the legislature of this state, by an act passed the 6th April, 1784, divided the town of Hempstead into two towns. By this act, it is enacted that that part of the township of Hempstead which lies south of the country road leading from Jamaica nearly through the middle of Hemp-stead plains to the east part thereof, should be included in one township, and be thereafter called and known by the name of South Hempstead; and that all the residue of the said township of Hempstead should be included in one township, and be thereafter called and known by the name of the township of North Hempstead. By the second section of this act, it is enacted that the freeholders and inhabitants of the said two townships should enjoy the like privileges, which, by the laws of the state, were incident to other townships in Queens county ; and by the fourth section, it is enacted that the inhabitants of South Hempstead should enjoy the right of oystering, fishing and clamming in the creeks, bays and harbors of North Hempstead, and the inhabitants of North Hemp-stead should have and enjoy the like privileges in the creeks, bays and harbors of South Hempstead. By this division, all the marshes, meadows and beach, and the greater part of the undivided and unappropriated plains comprehended within the letters patent, fell and were comprehended within the bounds of the new town denominated South Hempstead, the name of which town, in the revision of the laws in 1801, was changed to Hempstead.
    
    After the division of the original town of Hempstead into two towns, the freeholders and inhabitants of the respective towns, by rules and regulations adopted at town-meetings in their several towns, prescribed and regulated the use and management of the common property in their respective towns. Until within a few years previous to 1815, the marshes, beaches and plains were used and enjoyed by the inhabitants in general of North and South Hempstead, for the purpose of cutting arid carrying away grass and sedge therefrom. A witness, of the age of 55 years, testified that such had been the practice as long as he could remember, till within a few years before his examination, when restrictions were imposed by the present town of Hempstead on the use and enjoyment of the same. The town of South Hempstead, however, after the division of the original town, assumed the regulation of the time and manner of using the marshes, and at an annual town-meeting in April, 1797, established a regulation, directing and declaring that no person, not residing in the town of Hempstead, should cut any sedge on the marshes in the said town until the twentieth of September, under the penalty of five pounds ; and that the inhabitants of the town of Hempstead should not cut on the said marshes until the tenth of September in each year. The inhabitants of North Hemp-stead never claimed the right of attending the town-meetings in South Hempstead, for the purpose of taking a part in establishing rules and regulations respecting the marshes, nor did they at the town meetings in their own town assume such right, as it respects the marshes, &c. in South Hemp-stead.
    It was attempted, in the court of chancery, to shew a right to the undivided lands of the original town of Hempstead in the descendants or heirs at law of the patentees named in the grant from Governor Dongan, and of those who contributed to the expense of obtaining that grant, and some proof was adduced that such rights had been recognized; but, on the other hand, it was conclusively shewn, that from the date of the patent down to the division of the town, and even to the time that the proofs were taken, the control and disposition of the lands in the patent were exercised by the town exclusively, in its regular town-meetings. The property of the town, unappropriated by individuals, was always governed, considered and disposed of as town property. The town-meetings exercised in this respect a steady, exclusive and unquestioned jurisdiction. The grants to individuals, amongst which is one to John Jackson, one of the patentees, of the date of the 23d January, 1704, were town-meeting grants, which were made at the ordinary regular town-meetings for the civil concerns of the town and the election of its officers.
    On the 10th January, 1821, the appellants filed their bill in the court of chancery against the respondents, charging them with pretending and alleging, that from and after the division of the original town of Hempsted into two towns that part of the plains, and the whole of the marshes, meadows and beach, comprehended within the bounds of the town formerly called South Hempstead, and now Hempstead, became the sole property of the freeholders and inhabitants of the last mentioned town, and belong to them as their common right and property, for their own use and benefit, to the exclusion of the appellants, and complaining that the respondents had for some time past prevented the appellants from using or enjoying the undivided plain lands, beaches, meadows and marsh, or taking any of the products or profits thereof ; and that the respondents had passed resolutions by vote in their town-meetings, and made rules and regulations for the express purpose, and with a view to exclude the appellants or any of them from a participation in the use, enjoyment, products or profit of the said marshes, meadows and beach, and have attempted to enforce the observance thereof. An answer having been put in, and the cause' put at issue, it was agreed between the counsel for the parties respectively, that on the hearing, each party should be at liberty to use the proofs and evidence which had been taken and adduced in a cause of Denton and others v. Jackson and others, decided by Chancellor Kent, in which the subject of this controversy came in question, (a report of which case, and of the opinion of the chancellor in the same, will be found in 2 Johns. Ch. R. 320 to 338.) The evidence was accordingly used, and in the October term, 1824, of the court of chancery, the cause was brought to a hearing before Chancellor Sanford, who dismissed the suit, with costs. The opinion of the chancellor pronounced on dismissing the bill, will be found in 1 Hopkins, 289 to 300. The complainants below appealed.
    
    
      R. Emmet, for appellants.
    The Dutch grant did not create a corporation. The patentees under it took an estate in their own right, and as trustees for their associates. The word successors, occurring in the grant, was used untechnically, and does not shew the intention of the then government to create a corporation, because the words heirs, executors and administrators also occur, which could not by possibility apply to a corporation ; and besides, the patentees were to hold the lands granted, as their own free land of inheritance. The English grant was expressly made to the patentees, in behalf of themselves and their associates, the freeholders and inhabitants of Hempstead, and ratified and confirmed the former grant. These grants are the common source of title to both towns, and under them the freeholders and inhabitants of the original town of Hempstead had vested rights, which they used and enjoyed in common until the division of the town in 1784. Could they be divested of those rights by a division of the territory into two towns ? The rights of the freeholders and inhabitants were inalienable except by their own acts. They held as corporators, enjoying private property, which could not be taken away by the legislature, even for a public use, unless compensation was made; and they could not be deprived of their rights on the ground of a partition by the legislature, for the legislature had not the power to make a partition, though all parties consented. It would have been an usurpation of judicial power, the making of partitions being the province of courts of law or equity. Such, however, was not the intention of the legislature, nor should their act be so construed. The object of the legislature was solely to make a division of the territory for the more convenient government of it. The application of North Hempstead for the division of the town, cannot he construed into a consent that a partition should be made of their common property. The object of the applicants was simply to obtain a division of the original town, for the more convenient transaction of their town business.
    It has been said, that two towns cannot hold property of this ldnd as tenants in common, because they cannot meet together and establish the necessary rules and regulations for the use and enjoyment of the property, which can only be done at town-meetings, and which are necessarily confined to the inhabitants of the town in which such meetings are held. ' Allowing that no legislative provision exists on this subject, it only proves a castes omissus, but does not therefore divest vested rights. The facts of this case, however, destroy the argument advanced, as they shew that rules and regulations have been adopted by delegates of not only the two towns of North and South Hempstead, but also of the adjoining town of Oyster-Bay, prescribing the mode and manner of using the plains; and if the use of the plains could thus be regulated, why not the use of the marshes 1 4 Mass. Rep. 140, shews a case of the exercise of a common power by three distinct towns regulating fisheries. ‘
    It has been said that a new town has no rights or powers but such as are granted to it on its creation. Allow this proposition, and what is its effect, which is the new town ? The territory was divided into two towns, one called North the other South Hempstead.
    It is denied that the lands granted belonged to the town as a community in a corporate capacity. It could not claim by prescription. No such claim can be asserted in this country. No corporate powers were granted by the Dutch patent; on the contrary, the patentees were to hold the lands as then*' free land of inheritance. Towns are not corporations. (8 Johns. R. 385. 9 Johns. R. 73.) If Hempstead was a corporation, it was so only for the purposes of town government To have enabled the town to hold lands, there should have been an express power given. (1 Kyd on Corp. 31.) The town could not have sued for trespasses; nor were corporate powers given by the English grant; nor could the tows be considered quasi a corporation ex necessitate, as the patentees and their descendants have always been competent to hold.
    But supposing the town to be a corporation, did its corporate powers become extinct by the division 1 or did one of the towns inherit those powers 1 and if so, which 1 in what character did it succeed as heir, executor' or administrator T If they did succeed, they must have succeeded as coparceners. If the corporation became extinct by the act of division, the lands reverted to the state, as the new towns had no inheritable qualities. To solve the difficulty, the title must be considered in the freeholders and inhabitants, holding the same as a corporation, and not in the town. There is nothing inconsistent in the existence of such a right in the-freeholders and inhabitants, with the exercise of their powers as a town for municipal purposes. If the legal estate was in the trustees, it has now centered in Jacob S. Jackson, the descendant of the last survivor of the patentees. The provision relative to the fisheries;, in the law creating the two towns, does not necessarily prove that all other property before held in common was considered as vested in the separate towns. The object of this provision was solely to declare the rights of those two towns in exclusion of strangers. The act of the legislature of 1788, re-enacting the act of 1784, dividing' the original town of Hempstead, contains an express saving of the rights and titles of every person and persons, bodies politic or corporate ; and though this provision had been omitted in the original act, the legislature, on re-enacting the same, thus clearly demonstrated their meaning, that nothing more was intended than a division for municipal purposes. But allowing the legal estate to be in the town as a body corporate, they held it in trust for the freeholders and inhabitants, and the only effect of dividing the town was to increase the number-of trustees,.
    The two towns, after the division, were tenants in commony and the possession of one was the possession of the other. The rights of a tenant in common can be destroyed only by actual ouster. The resolutions passed by South Hempstead will not amount to an ouster. There was no non-user by North Hempstead; on the contrary, a continued use; and though individuáis might be disturbed in the enjoyment of their rights, the assertion of right by one individual would •enure to the benefit of all. The suits which were brought by South Hempstead were for violations of by-laws, which could only be enforced against corporators. Had actions of trespass been commenced, then there would have been an assertion of exclusive right. There is no pretence of an exclusive possession by South Hempstead for such a length of time as to give them right on that ground. This doctrine is not applicable to this case, as, until the year 1820, North Hempstead was not in a capacity to sue for her rights, when a special act was passed, authorizing suits by towns. (Statutes, vol. 5, b. 175.)
    The subject matter of this cause is res judicata, and the rights of the parties are settled and fixed by a former decision of this court. In the cause of Denton and others v. Jackson and others, although the decree of Chancellor Kent, dismissing the bill with costs, was affirmed on the ground of want of necessary parties, this court, in 1818, adjudged “ that the several freeholders and inhabitants of the town of North Hempstead are entitled to the use, benefit and enjoyment of the undivided plains, meadows, marshes and beach stated in the pleadings in this cause, in common with the several freeholders and inhabitants of the town of Hempstead. But inasmuch as the bill of the complainants is not so constructed as to enable this court to grant relief to the said several freeholders and inhabitants of North [Hempstead according to their title hereby adjudged, and no other ground of relief appearing in this cause, it is ordered,” &c. The decision thus made was not an unnecessary or extra-judicial act. To enable the court to determine that all necessary parties were not before them, it became necessary to inquire into the rights in controversy, and having done so, they adjudicated upon the facts before them. As to the effect of the decision thus made upon the cause now before the court, the counsel cited 1 East, 355; Peake’s N. P. Cas. 220 and 156; 1 Douglass, 222, n. 13 ; 4 Dallas, 120 ; Carth. 181 ; 5 T. R. 413; 2 Salk. 524, 527 ; 2 Botts’ Poor Laws, 702, 704.
    As to the right of the appellants to file a bill for partition, 4 Johns. R. 271 ; Ambl. 236, 589 ; 8 Vesey, 143.
    -ZX S. Jones, for respondents.
    The opinion pronounced by this court in the case of Denton and others v. Jackson and others, can have no effect upon the rights of the parties here. The parties are not the same, nor is the subject matter of the suit the same. It is a general principle, that a transaction between two parties* in judical proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment which he may think erroneous. - To shew that the court were not precluded by that decision from passing on the rights of the parties now before them, the counsel cited 1 Gilb. Law of Ev. 32 ; Phil. Ev. 241 ; Peake's Ev. 26 ; Holt's R. 134 ; 1 Munford's R. 394, 402, 403 ; 14 Johns. R. 83 ; 18 Johns. R. 354. The question now under consideration was not argued before the court of errors in the case of Denton v. Jackson. Suppose the. decision had been that the town of North Hempstead had no rights, would the town have been concluded, not being a party to that suit 1 The decision can have no binding effect, because inapplicable; but if applicable, it was extra-judicial.
    The freeholders and inhabitants of Hempstead, before the division of the town, owned the property in question as a corporation. If it is owned by the freeholders and inhabitants as tenants in common, having vested rights, the suit was not sustainable, as it was brought by the appellants as a body corporate. The corporate name of towns is, “ The freeholders and inhabitants of the town of-,” as set forth in the act respecting the civil divisions of the state.. The town of Hempstead existed previous to the Dutch grant, and was settled by New-England men, who brought their notions of town rights and town privileges with them. The Dutch grant creates a corporation with fuller powers than any which now exists. Admitting that the grantees were trustees, they were trustees the same as the corporation of New-York are trustees for the citizens of New-York, and not otherwise. No prescribed form or appropriate words are necessary to create a corporation, (1 Kyd on Corp. 62,) if by a grant, emanating from competent authority, it is evident it was intended to create a corporation ; and, if unless such construction be given to it, the intent will be defeated, the corporation will be considered as created. Corporate powers may exist where there is, in fact, no corporation. (1 Kyd on Corp. 29, 9 to 19, 52 to 63. 8 Johns. R. 422. 18 Johns. R. 418.) The free inhabitants of Hempstead, after the Dutch grant, immediately organized as a corporation, nominated magistrates, and, by votes in town meetings, made appropriations of the common property. The English grant was a confirmation not only of the lands, but of the corporate powers, and so it was considered ; as, from the date of that grant in 1685 until 1815, the property has been controlled and managed in town meetings by the inhabitants in their corporate capacity, not only by appropriations to individuals, but by the the raising and paying of quit-rents reserved by the latter grant. Again, the exercise of corporate powers, for a period of 138 years, from the time of the Dutch grant in 1644, until the division of the town in 1784, is sufficient to authorize the presumption of a patent creating a corporation. Although an ordinary town, organized simply for municipal purposes, may not be a corporation, all the towns on Long Island created by charter, (and most were so created,) are corporations, or, at least, corporations sub modo, for the regulation of their common lands. The provincial statute relative to towns, passed in 1691, (Van Schaick’s ed. of the Laws, ch. 2, p. 1,) acknowledges the existence of towns created by grant, and confirms such grants. The existing statute relative to towns, acknowledging that towns have common lands, and prescribing the manner in which the use and enjoyment shall be regulated, admits that such towns are corporations; and, in this respect, a grant to an association of men, thus circumstanced, differs from a grant “ to the people of a county,” which, in 8 Johns. R. 385, was held invalid. It is admitted, that in Hornbeck v. Westbrook, (9 Johns. R. 73,) it was said that a grant to the inhabitants of a town, not incorporated, would have been void for uncertainty. Was it necessary to review that decísIon, this court would not sustain it, being contrary to the gen-. eral received opinions on the subject, and to the acts of the legislature in relation to towns ; but it is not so, as the cáses are not parallel.
    ■ On the division of Hempstead into two towns, each of the towns succeeded to the possession and enjoyment of the common property lying within its own limits. Such is the invariable practice on the erection of new towns, new counties and new states. When Vermont separated from this state, she took the public lands within her bounds, and New-York retained what remained in her bounds. So it was also in the divisions of territory between Virginia and Kentucky, Georgia and Alabama, Massachusetts and Maine. When was it ever pretended, that on a division of a county into two counties, that the public buildings belonged to both, and must be considered as common property! Both chancellors, (Kent and Sanford,) in considering this subject, lay down the proposition, that a town cannot hold lands out of its bounds ; and such evidently was the contemplation of the legislature in conferring powers upon towns for the regulation of their common lands. (2 R. L. 121, s. 12.) At all events, it cannot be secured in the possession of such lands, as the penalties which are authorized to be imposed must be sued for in the name of the supervisor of the town where the offence is committed, for the use of the same town. It evidently was the intention of the legislature that the common property lying in each town should be held in severalty, or why the provision relative to the fisheries 1 The acts of the two towns subsequent to the division conclusively prove, that the inhabitants of each considered the common property lying within their several towns as belonging to them exclusively and in severalty; and from 1784 until 1818, when the decision was made in the case of Denton v. Jackson, there was no question on the subject.
    If the division of the original town of Hempstead into two towns be not, in itself) a partition of the common property, the exercise of an exclusive control, by South Hempstead, of that portion of the property which fell within its bounds, for the length of time which accrued.between 1784, the time of the division, and 1821, the filing of the bill in this cause, is an assertion of right and title sufficient to bar the claims of North Hempstead. The town of South Hempstead had all the possession of the property which its nature and description was susceptible of, and which the town, in its corporate capacity, could have. It was only by establishing rules and regulations for the use of the property, that they could exercise a control over it. In addition to this, there is an entire absence of all claim of right on the part of North Hemp-stead, or any individual of that town, after the division in the common property comprehended within the bounds of South Hempstead. Individuals of North Hempstead cut grass an the marshes in the latter town by permission, but not under a claim of right. If not from 1784, the respondents have a right to insist upon an exclusive possession, under a claim of right from 1797, when the resolution was passed interdicting the use of the marshes to all persons not residing in South Hempstead, until ten days after the inhabitants of South Hempstead had cut grass there.
    There is no equity set up in the bill entitling the appellants to relief. It asks for a partition, not for a declaration of the rights of the parties. The estate, if any, to which the appellants are entitled, is a right of common, not a tenancy in common. A tenant in common is entitled to the soil and freehold ; but a person claiming a right of common is only entitled to the use, products and fruits of the soil, which are not susceptible of partition like a freehold; nor do our laws afford a remedy of the kind. If, however, such remedy did exist, how could partition in this case be made 1 Must the property be equally divided between the two towns 1 or must it be divided in reference to the number of inhabitants in each town ? Must it be according to the population and state of things as they now exist, or as they existed in 17841 In either way, it is presumed it would be found to be impracticable.
    
      D. B. Ogden, on same side.
    The suit of the appellants in the court below should have been in the name of the town, or in the name of the freeholders and inhabitants, and not of both. If town rights were demanded, the freeholders and inhabltants ought not to have been joined. If the freeholders and inhabitants had vested rights, which had been invaded or denied, the town ought not to have been made a party. The statute under which the suit was brought contemplates there may be actions in the name of the freeholders and inhabitants, in which the town has no interest; and a party here having been joined, who has no interest, the bill should be dismissed.
    This is a suit for partition. The statute requires that such suits as shall be commenced under it shall be prosecuted according to the usual forms. In a bill for partition, the complainant must state his rights with precision. (1 Vesey & Beame, 551,) though the same particularity is not required in setting forth the rights of his adversary. (17 Vesey, 551.) Have the complainants specified the proportion to which they are entitled 1 Is it stated with precision whether the claim is for the town or for the freeholders ? and aré there any means of rendering the claim certain 1 Is the property to go to the freeholders or to the inhabitants, to one class or to both 1 Is their share to he determined by their numbers, or by the quantity of acres they possess 1. These questions can be decided only by a court of law. Equity only gives partition where the rights of the parties are settled. (Bunbury’s R. 322.) If the defendant contests the legal rights of the complainant, the bill will be dismissed, and the complainant sent to a court of law to establish his title. Partition is never ordered when property is held adversely to the claim of the complainant. The complainants here allege that the defendants have ousted them. A tenant in common may oust his co-tenant. (5 Wheaton, 124.) If an ouster has taken place, the possession of one tenant in common for the benefit of his co-tenant no longer exists.
    There is a clear distinction between a tenancy in common and a right of common; the latter is an incorporeal right to the use of the land, the fee being in another. The appellants claim, either in one right or the other. If they claim as grantees, devisees or heirs at law, where is the allegation to that effect ? There is none ; and therefore if they insist that the equitable interest vested at the time of the grant, they shew no title. A court of law is alone competent to establish a right of common. If the appellants have been disturbed in their right of common, why not bring their action at law 1 There was no necessity of going to chancery on account of their numbers ; the statute authorized a suit at law in the name of the town.
    Can the town of North Hempstead claim any thing as a tenant in common 1 It was created in 1784, and has no rights or privileges but what are derived from the "act creating it. It was to have the rights and privileges of other towns in Queens, not one of which has the power to hold lands out of its bounds. If a tenant in common, to what proportion is she entitled 1 She does not state the aliquot part she claims. From the very nature of things, a town cannot be a commoner. A. town has no cattle, is not entitled to estovers, &c.
    Is Keisfs patent a grant to individuals, or to a corporation 1 The question is to be tested by the civil law, as the Dutch did not acknowledge the common law. Corporations, by the civil law, were created by the mere act and voluntary association of their members. (1 Black. Comm. Ch. Corporations.) The inhabitants of Hempstead did so associate together, and such association without grant constituted them a body politic. But by the common law, the grant constituted them a corporation. It was a grant from the sovereign authority of the country to them and their successors, a term applicable only to corporations. Where a grant is made, every thing necessary to carry it into effect follows as incidental to the grant. When, therefore, a grant is made to sundry persons and their successors, a corporation is created, like the grant to the good men of the town of Islington. (Dyer’s R. 100, a. pl. 70, acknowledged in 2 T. R. 672.) Kyd makes the reservation of rent the test; if so, Dong arts patent reserves a quit-rent. Besides, the grant being to the patentees and their successors, they were empowered to choose their own magistrates. This is the mode in which corporations are now created. Books are directed to be-opened for subscriptions, and directors to be chosen. From that time the body corporate and politic exists. The bill admits that the common property was used by the town as s corporate body. Had the grant in the case in 9th Johnson been made by the state to Rochester, the grant itself would have obviated the objection that there was not a party capable of taking, as the very act would have created a corporation. By the articles of capitulation, on the surrender of New-York by the Dutch, (Smith’s Hist. 44, s. 16,) all inferior civil officers were to continue until a new election, and then to be chosen by the people in the same manner as had been customary. Thus the people of Hempstead were left in the exercise of the power granted by Keist. The patent of Dongan recognized the existence of the town, the land belonging to it, and the grant under which it was held. Dongan’s grant is a grant of confirmation, and is given to a different set of men than those to whom the first grant was made. It could not, therefore, be to confirm individual rights, but was to confirm corporate rights. It was made under the common law, and containing the word successors, a corporation was thereby created, if it did not previously exist.
    What was the effect of the division of 1784 1 Before the division, the freeholders and inhabitants were corporators. When they ceased to be corporators, their rights in that character ceased. After the division, they had no common rights extending over the whole territory. When the legislature made two corporations, it followed as a necessary incident, that the corporate rights were separated, and each held in severalty except as to the fisheries, which were expressly reserved to remain in common. The act of 1788, reserving rights of persons and corporations, could not apply to Hemp-stead, whose rights had been fixed by the act of 1784 ; besides, the saving clause in that act applied only to private rights. From 1784 to this day, South Hempstead has claimed nothing in North Hempstead. North Hempstead took what was within her bounds, and now claims the half of what is in South Hempstead. Much of the common lands in North Hempstead have been enclosed, and she cannot ask for a division without again throwing them into common stock.
    
    
      J. Duer, for respondents, in reply.
    The great question in this cause is, had the inhabitants of the town of Hempstead, previous to the division, a beneficial interest in the land 1 Can such an interest be vested in the inhabitants of a district or territory ? A grant cannot be made to them directly in their collective capacity. They have no power to take or transmit a title. On this point, the cases in 8 and 9 Johnson are conclusive. There are but two modes of effecting the object, either by the intervention of trustees, or by creating the inhabitants a corporation. First, suppose a grant to trustees and their heirs for the use of such persons as then were, or thereafter should become inhabitants of a certain district, with power to eestuis que trust to regulate the subject matter of the grant; such a grant doubtless would be valid. It would not be necessary to its validity, that the trustees should be inhabitants of any particular division of the state, or that the lands should be included in any such division, but might lie in different counties or towns; nor would a change in the civil divisions affect the grant or the interest of the eestuis que trust. And it is equally clear that the eestuis que trust would have a beneficial interest. They would be the only persons who would have such interest, being the equitable owners. Nor will it be contested that the eestuis que trust under such a grant would have private rights of property which no legislative act could divest. Second, the object might be better effected by creating the inhabitants a body corporate, and making the grant to them in that capacity. The beneficial interest of the inhabitants would be precisely the same as in the former case. The only difference would be in the mode of acquiring title, but none in the use or enjoyment of the lands granted. They would be equally private rights, and equally beyond legislative power. Suppose, after such grant or charter, the territory granted is constituted a town for political purposes, would rights previously acquired be merged in the erection of such town 1 Why should a merger take place 1 A town, as such, cannot acquire a title, much less has it the superior title, in which the lesser must merge. The whole title was already vested in the inhabitants. There is no incompatibility in the union of public and private rights in the same body. The bank of the United States is an instance of the kind. Have the stockholders of that bank no beneficial interest 1 Could the gov» ernment, by taking away the administrative powers, destroy the rights of the stockholders 1 These observations, if just, go far towards the decision of the principal question; for it can surely make no difference that a private corporation and town are created by the same 'grant. The distinction between powers does not depend on.the time of their creation, but on the nature of the powers themselves. To illustrate the distinction, what is a town 1 what its corporate powers 1 and. for what purposes can it hold property 1 A town is a civil division of the state, the inhabitants of which are vested with certain political and administrative powers. Thence the unlimited power of the legislature over its bounds. There are no vested rights beyond the reach of legislative authority. What are the corporate powers of a town, if it possess any 1 It is not contended that it is a corporation in the full sense of the term, or that its powers as such are unlimited. Both chancellors say that towns are but corporations sub modo, that their powers are qualified and limited. The extent of their powers can be ascertained only by reference to the objects for which they are implied; for no direct corporate powers are given. They can have none but such as are necessary to their political existence, and the exercise of their political character. Thus they have the legislative power of framing regulations for town purposes, and enforcing them by penalties; a necessary consequence of which is the power of prosecuting for a breach of those regulations, without which the power would be nugatory. So, having town records, they may adopt measures for their preservation, by building a clerk’s office. So, having a discretionary power as to the maintenance of the poor, they may probably erect a town poor-house, probably, because in England such power, in every case, is conferred by statute. In every instance, corporate powers flow from some political or legislative power, and limited by the necessity to which it owes its origin. Consequently, a town, as such, could not purchase lands with a view to speculation, or to a division of them among its inhabitants. If a grant is made by an individual to a town, it is utterly void for want of capacity in the town 
      to take. If this is denied, then corporate powers are unlimited. Once depart front positive limited necessity to discharge an express power in search of the implied powers of a town, and no limit remains. A grant made by the legislature would be good, because the grant itself confers a new and distinct corporate power; but in such case the legislature could no more take away land than if granted to any other corporation. Such act would be an interference with private rights of property. Suppose a grant made to certain individual inhabitants, by name, and successors, chosen in a manner prescribed, would the corporation be dissolved by an alteration of the limits of a town ? Would the rights of parties be divested 1 If made to a town, the interest of parties is the same ; and in addition, they have the power of legislation. The division of the town might render difficult the execution of the trust; but it would not divest private rights.. These positions sustain the rule laid down by both chancellors, that a town can hold lands only within its own limits; for a town, as a town, can only hold such lands as are necessary to the performance of its powers, and as such powers are only to be exercised within its jurisdiction, there can be no necessity for holding lands without its jurisdiction. The necessity is limited by the jurisdiction, and that ceasing, that which is founded on it ceases also. Thus it is seen that the rule is applicable only where land is held by a town as such, but not where it is held under a special grant, for purposes unconnected with its political powers or jurisdiction. Would it not be absurd to say that the legislature could not grant lands to a town without its limits ? yet, if the rule be as laid down by the chancellors, without limitation, the legislature would not have the power to make such grant. Again, the rule, thus understood, that a town, as such, can only hold lands within its own limits, the legislature violate no right of private property by changing such limits; because, in land held for political purposes, no individual can have a beneficial interest.
    To ascertain how a town holds lands, whether in its character of a town, or in its special character as a corporation, reference must be had to the grant under which it is held. If the lands were granted for purposes of jurisdiction, it holds as a town ; but if for purposes foreign to jurisdiction, it holds in its new and, special corporate capacity conferred by the grant itself. The lands here were granted by the state, a fact wholly overlooked by both chancellors. The magnitude of the grant contradicts the idea that it was made for public purposes. It evidently was intended for individual enjoyment, and not to be held as undivided property for the public purposes of the town. The object of the grant was the settlement and improvement of the country; the land to be divided and allotted to individuals ; and, until so divided, to be enjoyed in common, under corporate regulations. The subsequent acts explain clearly the intent of the grant, which contains a cession of land, and power to erect a body politic. Had the charter stopped with the grant of the land, would not an interest have passed to the grantees, and would they not have been a corporation, though not possesr sing such corporate powers as were granted in the charter ? Until the town was organized, where was the title 1 Under the former part of the grant, inhabitants only would be corporators, but by the latter grant, freeholders and inhabitants are corporators, reside where they may. They had, therefore, a vested interest. Though there is but one corporate name and one origin of the corporate will, the powers are distinct.
    The reasoning of the chancellors, that the effect of the division was to deprive the appellants of their right in the common lands, which were comprehended in the town of South Hempstead, would be equally conclusive if the whole of the common lands had been thrown into either town, or annexed to another town. The division either per se did or did not destroy the title. If it did not destroy the title, how was the partition of the common lands effected % It could be only in , one of three ways : by the laws of the land, by the consent of parties, or by acquiescence. A legislative act dividing a town is no evidence, in itself, that partition of property held in common was intended. The reservation of the fisheries is no evidence of such intent; the right of fishing being an individual privilege, and no part of the corporate property. It should not be left to inference to establish the partition, but should be made out by direct and positive enactment. The power of the legislature to make partition is very doubtful; being a judicial and not a legislative act. At any rate, when exercised, all parties should be shewn to have been before them, the subject matter well understood, and the value of the several parts ascertained. Besides, the provision in the act of 1788 is a legislative declaration, that by the division of towns and the alteration of bounds no change of title was intended to be effected.
    Here was no partition by consent. The appellants consented to a division off the town, not to a partition of their property, and never contemplated that a loss of their rights in the common property would be a consequence of the division. Nor have the appellants lost such rights hy acquiescence. This principle is intimately connected with the doctrine of adverse possession. Lapse of time before suit cannot be urged against appellants, for until disturbance why bring a suit 1 The separate exercise of power by the towns in regulating the common lands within their respective bounds, affords no evidence of acquiescence. Such regulations were necessary, and could more conveniently be adopted in each town than in any other manner. The resolution of South Hempstead of 1797, giving a preference to its own inhabitants, does not appear ever to have been communicated or enforced. The conclusive answer, however, is, that the appellants continued the use and enjoyment of the marshes up to the time of the commencement of the suit, in the same manner as they had been accustomed to use and enjoy them previous to the division.
    If the decision in the case of Denton and others v. Jackson and others is not binding upon the respondents, why should it not control as an authority 1 South Hempstead was then represented, the question was the same, the evidence the same, and the court certainly meant and did adjudge the point in controversy.
    As to the formal objections urged on the other side. The suit was correctly brought in the name of the town and of the freeholders and inhabitants ; the statute under which it was commenced expressly authorizing it fa be brought ki such form ; and, by the by, this very act of the legislature proceeds on the supposition that two towns may hold lands-in common. The rights of the appellants are set forth .with ag precision as the nature of the case would admit of. The whole title of the appellants is stated. The proportions to which each town would be entitled could not be specified, necessarily depending upon the facts to be ascertained by proof. It'cannot be objected that the appellants are seeking a partition of a right of common. Such is not their bill. They ask a partition of property held by them as tenants in common, to which they are entitled as corporators; and the impossibility of making partition, on account of the nature of the property, the difficulty of ascertaining the rights of the parties, and the various other considerations upon this point urged by the respondents, is answered by the axiom of the common law, that there is no right without its remedy.
   Savage, Chief Justice of the Supreme Court.

The object of the bill filed in this case is to obtain partition of certain plains, beaches, meadows and marshes situate within the town of Hempstead, in which the appellants claim to be tenants in common with the respondents.

From the allegations of the parties in their pleadings, there seems to be no dispute between them upon the point, that the lands in question were held by the town of Hemp-stead in its corporate capacity, and not by the patentees or their heirs in their individual capacity. Indeed, in no other capacity could the appellants file their bill. They have brought their suit as a town, and not as the individuals of the town. The point, that the individuals claiming under the patentees cannot recover in their individual capacity, was decided in the case of Denton v. Jackson, (2 Johns. Ch. R. 320,) which was affirmed in this court upon that point. The chancellor, in giving his opinion, had discussed the main question in this cause, viz. whether the town of North Hempstead, in its corporate capacity, was entitled to the partition prayed for in the bill, and was of opinion that it was not; but he dismissed the bill for want of proper parties. When the cause came into this court, the decree of the chancellor was affirmed upon the point on which he had dismissed the bill; but this court expressed an opinion in their decree declaring that the present plaintiffs were entitled to the partition prayed for by the plaintiffs in that suit. We have no report of that appeal, except what is found in 7 Johns. Ch. R. 254, of the general index in that volume, where the reporter says that the judges, in assigning their reasons, took very different views of the case. As the expression of an opinion in favor of the rights of the present plaintiffs, who were not parties to that suit, was an obiter diet um, and no part of the judgment of the court, wc are not now at liberty to repose ourselves upon it as a matter adjudicated in this court, and therefore not to be again agitated ; and it becomes necessary to examine the grounds upon which the claim now sought to be enforced is founded.

Before doing so, it is proper to advert to some cases cited by the appellant’s counsel, to shew that a town is not a corporation. In the case of Jackson v. Corey, (8 Johns. R. 385,) it was decided that “ the people of the county of Otsego” had not a capacity to take by grant, on the ground that the county was not incorporated. It is there said, a grant to be valid must be to a corporation, or some person certain must be named, who can take by force of the grant, and who can hold either in his own right or as trustee. In Hornbeck v. Westbrook, (9 Johns. R. 73,) it was decided that the town of Rochester, not being incorporated, was incapable of taking an estate in fee. Without impugning these cases, or subscribing to their correctness, they do not control this case. The grant in this case was certainly valid according to the case of Jackson v. Corey, inasmuch as it was made to certain individuals who might be trustees. There is also another point of difference between those cases and the case now under consideration. In those cases, the grant was from an individual; here, it was from the sovereign, who might, and, in my judgment, did give to the grantees a capacity to take and hold in a corporate character. In the ease of Goodell v. Jackson, (20 Johns. R. 706,) it was held in this court, that a grant to an Indian and his heirs was valid in favor of the heir, though an alien, because the gov» eminent was competent to vest him with the capacity to take real estat6) and the intention to do it was implied in the grant -itself, which was issued by authority of law. The same principle, thus applied to an alien, has since been extended to a slave, by force of the resolutions and laws of this state. (Jackson v. Leroy, 5 Cowen, 397.) There is still another ground on which the title in the town may be sustained. It is fairly inferrible, that if any consideration was paid in the first instance, all the inhabitants contributed to it. The grant is to the patentees and their associates, heirs, successors and assigns. If the patentees were trustees, and the cestuis que trust paid the consideration, there was then a resulting trust in their favor; and such cestuis que trust have been considered as possessing the equitable estate, and the legal also, so far as to enable them to defend or maintain an action of ejectment for lands thus held by them.

The grant itself, however, considers the town as a corporation to be created; the colonial laws considered towns as corporations; (1 Van Schaick’s Revision, p. 2 ;) and, if I do not much mistake, our statutes of the present day do so consider them, for certain purposes. By the 12th section of the act relative to the duties and privileges of towns, (2 R. L. 125,) the freeholders and inhabitants, that is, the voters, have.a right to make regulations respecting their common lands. How are they to hold common lands, unless by grant 1 they surely cannot inherit. It is not to be supposed that the legislature would give the towns power to legislate in an impossible case ; and, upon the principle adopted by this court, in the case of Goodell v. Jackson, such an act of legislation of itself is sufficient to create a capacity in the towns to take and hold common lands. If, however, they have no such right, what becomes of this suit 1 The plaintiffs here sue in no other capacity; and, if they are not a corporation for the purposes contemplated by the act, the suit should be dismissed on that ground. The truth, no doubt, is, that towns are corporations in a certain degree ; and, so far as corporate powers are granted, or incidental to express grants, towns possess such powers; and particularly in the case now under consideration, it seems to me that corporate powers to the extent expressed, were intended to be conferred.

This brings me to what I conceive the main question in the cause : the effect of the division of the town in 1784. In discussing this subject, it will be difficult to avoid a repetition of the arguments used by the chancellors, Kent and Sanford.

I consider the town of Hempstead a corporation. The plains, meadows and marshes were the property of the freeholders and inhabitants of the town in their corporate capacity ; but did not belong to any or either of them in their individual capacity. No one had a right to use or occupy the common property, but by leave and permission of the corporation. The corporators were not tenants in common in this property. It was competent for the corporation, had they not been limited by law, to have leased the whole of their plains and meadows to an individual for a certain rent; and in that case, the lessee would have been entitled to the exclusive occupation of them, and the corporators would have had no right to enter upon them. The state of New-' York owns a large quantity of land which belongs to the people of the state, not in their individual but in their political capacity. The people, therefore, are not tenants in common in those lands; and an entry upon the lands, without the license of the corporation, (the state,) would be a trespass. The same relation exists in all corporate property, whether it belongs to a county, a town, a city, a college, an academy, a church or a bank. Suppose the state to be divided into two states, without some special agreement, each would own the public property within its limits. So of counties, the public buildings remain the property of the old county ; yet public buildings are as much public property as public lands. So, as to the plains, meadows and marshes which are the subject of this suit. A bill filed by a new county for a partition of the gaol and court-house, which had been common property, would be the same in principle as the bill in this suit. Would not such a suit be considered preposterous 1 Suppose a religious corporation, possessed of a church and parsonage; it becomes expedient to erect a part into a new corporation ; would not the old corporation retain the property, unless an agreement was made as to the partition of it'! It would not be difficult to multiply analogous cases; but enough have been stated to elucidate the principle for which I contend.

It is evident to my mind, that those who procured the division of the town of Hempstead understood their rights as I understand them. The town extended across the island. The plains were in the middle, the meadows and marshes at each end. The division line of the towns is about the middle of the plains. Had there been no reservation, the inhabitants of these towns would have no other rights of taking fish in the waters of the town in which they do not reside, than the inhabitants of any adjoining town. The privilege of fishing was one, however, which neither wished to relinquish; it was therefore provided for. If it was then understood that the rights of the inhabitants were not to be changed or affected by the division, why was it necessary to make any reservation.

The act relative to the duties and privileges of towns, (2 R. L. 131,) directs the manner in which public property shall be used, or rather gives to each town the power of regulating the use of their common lands. By this act, the town of Hempstead has the power which has always been exercised by it, of directing the times and manner of cutting grass upon their meadows ; for instance : If North Hemp-stead possesses the power also of regulating the time and manner of cutting the grass on the meadows in Hempstead, it is easy to see that collisions must take place. But no such power is given to any town beyond its limits. It is not, in terms, confined to its limits; but as no power is given to the town beyond its limits, it necessarily follows that no such power is possessed by it. It is impossible for one town to make regulations for the management of public property in another town, because exclusive jurisdiction, as I construe the statute, is given to the town within which such property is located. That the division of the town into two was, at the time, understood and intended as a partition of the common property, receives strong support from the fact that after the division neither town undertook, by resolutions or other proceedings in their town-meetings, to interfere with the other. The town of North Hempstead has regulated the use of the common property within its limits, and the town of Hemp-stead, in like manner, has regulated the use of the common property within its limits; so that if a right did exist after the division, as is now contended, that right is barred by lapse of time.

On all the grounds of defence assumed by the respondents, I am of opinion that the appellants have no right of action, and consequently that the decree of the chancellor ought to be affirmed.

This being the unanimous opinion of tile court, the decree of the court of chancery dismissing the bill of the appellants, was in all things affirmed, with costs, and the record directed to be remitted.  