
    People ex rel., Charles C. Burnham, v. Edward F. Jones et al., Commissioners of Land Office.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 3, 1888.)
    
    1. Title—Land under waters of navigable lakes or rivers—Right of STATE TO CONVEY.
    Subject to the paramount control of the federal government, the state holds the title and may grant the soil of land under the waters of navigable lakes or rivers, or convey an exclusive privilege. It may do this, although it thereby cuts off the communication between the riparian proprietor and the water.
    2. Same—Commissioners of land office—To whom may make grants— Laws 1850, chap. 283.
    The authority of the commissioners of the land office to make grants of land under the waters of navigable rivers or lakes, is restricted by Laws 1850, chap. 283, so that they have no authority to make such grant to any person other than the proprietor of the adjacent land; and any such grant that may be made to any other person is void.
    8. Same—Action of commissioners may be reviewed by certiorari.
    In this case, upon application of the B. B. Company, having been made for a grant of lands under water adjacent to lands owned by them, and notice having been published, a remonstrance was filed on behalf of the present relator, claiming that he was owner of a part of the premises. The matter was referred to the attorney-general to hear the parties in interest. After examining the proofs of title and hearing counsel, he reported, as a matter of fact, that the said company had the title in fee to the upland. On reading this report and hearing counsel for the respective parties, it was resolved that the report be agreed to, and that the grant of lands under water be made to said company. Held, that a writ of certiorai'i to review the action of the commissioners could be sustained and was the proper remedy. That, althoueh this grant be void, that fact would not be a reason why a certiorari would not lie.
    4. Same—Duty of commissioners to examine and decide who owner of ADJACENT LAND.
    It was the duty of the commissioners to examine and decide (as they did) whether the applicant was owner.
    5. Same—Construction of deed—Land bounded by a “beach” does NOT EXTEND TO THE LAND UNDER WATER.
    The deed of certain land near the shore of Lake Ontario, described it as running to the beach of Lake Ontario, and gave the grantee the “use and privilege of the beach at the end of the private street.” This was afterward conveyed to the B. B. Company. The same grantor afterward conveyed to a different grantee a strip of land “ along said lake, ” in front of said first mentioned pieces of land (this strip was about thirty feet wide). The grantee of this strip afterward granted to the owner of the first mentioned land the right of way over and the use and privilege of the beach of said lake lying north of the lands heretofore conveyed, etc., referring to the aforesaid deed in common with owners of other lots, etc. Held, that the deed of the first mentioned track shows the existence, at the time it was given, of a beach (not land under water), over which the grantee accepted the grant of an easement. That the commissioners of the land office could grant the lands under water to the proprietor of that strip (of beach), and to no one else. That the width of the strip did not affect the right of the proprietor to such grant.
    Writ of certiorari to review the decision of the commissioners of the land office granting an application of the Bartholomay Brewing Company for a grant of lands under , the waters of Lake Ontario, in front of certain premises in the village of Charlotte and county of Monroe, a portion of the lands granted being in front of a strip of land 100 feet long, the title to which is claimed to belong in fee to the relator, Charles G-. Burnham. The relator claims as to so much of the grant as lies in front of this 100 feet of land, that the grant is in violation of the statute, which prohibits "the grant of any lands under water to any one “ other than the proprietor of the adjacent lands.”
    There is no dispute that the lands under water, covered by the description in the application of the Bartholomay Brewing Company, and covered by the grant, are partially in front of the lands claimed by Burnham. The only dispute is as to Burnham’s title to the land claimed by him, the Bartholomay Brewing Company alleging that the title to the land in question is in the company, and not in Burn-ham.
    
      W. B. Hornblower, for relator; F. Tabor, attorney-general, for def’t.s
   Learned, P. J.

Assuming, for the present, that the relator was the proprietor of the lands adjacent to a part of those under water, which were granted by the commissioners of the land office, we must inquire whether he can review their action by certiorari.

The relator had no title to or interest in the land under water in front of his premises. People v. New York and .Staten Island Ferry Co., 68 N. Y., 71.

Subject to the paramount control of the Federal government, the state holds the title and may grant the soil to such lands or convey an exclusive privilege. It may do this, although it thereby cuts off the communication between the riparian proprietor and the water. Gould v. H. R. R. R. Co., 6 N. Y., 522.

When, however, the state gave authority to the commissioners of the land office to make grants of land under the waters of navigable rivers or lakes, it put a restriction upon •such authority and declared that no such grant shall be made to any one other than the proprietor of the adjacent land, and any such grant that may be made to any other person shall be void. Laws 1850, chap. 283, § 1.

Chapter 139, Laws of 1834, authorizes the commissioner's, to require the attendance of witnesses, etc, Section 70, 1 R. S., 208, requires the applicant for a grant of lands underwater to give six weeks’ notice by advertisement in a newspaper, etc. It was held in People v. Schermerhorn (19 Barb., 541), that the publication of this notice was essential to. jurisdiction. That was a case where a grant was held void, partly because it was not made to adjacent proprietors.

In the present case, qpon application of the Bartholomay Brewing Company having been made for a grant of lands under water adjacent to lands owned by them, and' notice having been published, a remonstrance was filed on behalf of the present relator, claiming that he was owner of a part of the premises.

The matter was referred to the attorney-general to hear the parties in interest. After examining the proofs of title- and hearing counsel, he reported, as a matter of fact, that-the brewing company had the title in fee to the uplands.. On reading this report and hearing counsel for the respective parties, it was resolved that the report be agreed to, and that the grant of the lands under water be made.

Now it seems to us that here are all the elements of judicial or quasi judicial action:

First. Two parties each claiming title to the same piece: of land.

Second. Evidence given by each tending to support the; respective claims.

Third. Counsel heard on each side.

Fourth. A decision that the title is in one party.

Fifth. A grant made to that party as owner of the uplands.

It was certainly the duty of the commissioners (and so-they thought) to examine and decide whether the applicant, was the owner. And their decision may perhaps be forever-conclusive, as between these parties, on this question of ownership.

Furthermore, if the brewing company were not the proprietor of the adjacent, then there was a want of jurisdiction in the commissioners by the express language of the-statute. For there was such a conflict of evidence that their action cannot be reviewed. People ex rel. Kent v. Board of Fire Commissioners, 100 N. Y., 82, at p. 85; People ex rel.. v. Board of Police, 72 N. Y., 415.

And though the relator has no legal title to the adjacent land under water, yet he has a practical use, inasmuch as; he, and he only, could, before this grant, go from his land upon those waters for boating, or fishing or bathing, or any other purpose. And the statute has said that this right shall not be taken from him by any grant made by the commissioners of the land office. Although this grant may be void, yet that is not a reason why a certiorari will not lie. Fitch. v. Commissioners, 22 Wend., 132.

Unless the relator can be relieved by this writ, it is not 'easy to see what remedy he has. As the land under water is not his, he could not bring ejectment or trespass, should the company build thereon. And in any action which he might bring, it is possible that this decision of the commissioners would be a bar. We think for these reasons that ■the certiorari can be sustained.

The question arising on undisputed facts, we have next to inquire, was the brewing company the proprietor of that part of the land in question? It is a circumstance worthy of notice that the attorney-general, when reporting that the brewing company had the title in fee to the lands “ substantially as shown by its maps,” qualified his report by advising that the grant to the company should be absolute for the lands applied for, except that the grant in front of the 100 feet (claimed by relator) should be in a separate patent, •■and in form a quit-claim. Why the state should make a quit-claim deed for lands under water, which confessedly belong to it, is not clear, unless this was done on account of the statute making void all grants to others than adjacent proprietors. The relator claims that a piece of land 100 feet long, westerly of the west line of a private street, and about thirty-two feet wide, is not the property of the company, and is the property of the relator. Each party claims under James M. Whitney and wife. Beach avenue is a straight .street running east and west, nearly parallel with the Lake Shore, but nearer at the west. A private street, thirty feet wide, spoken of in the deeds, runs from Beach avenue to Lake Shore, and at right angles to the same. This street is parallel with the west line of lot 20, and is easterly therefrom.

The brewing company claims under a deed February 22, 1873, from James M. Whitney and wife, to Charles E. Upton. There was some error in this deed in saying east line of a private street instead of west line, which was corrected by a subsequent conveyance, and which we need not consider. We take the description as corrected. Beginning at the west line of a private street or avenue, thirty feet wide, extending from Beach avenue parallel with, and 250 •feet easterly from the west line of said lot 20, at a point seventy-three feet northerly from the north line of Beach avenue, thence northerly along said street 210 feet to the beach of Lake Ontario; thence westerly at right angles 100 feet to land sold by the party of the first part to J. D. Husbands and others; thence southerly at right angles 210 feet along said Husbands’ land; thence easterly at right angles to the place of beginning.” Together with the use and privilege •of the beach at the end of the private street and for a distance of 100 feet westerly therefrom in common with the owners of lots in the southwest quarter of said lot 20 for bathing and fishing.

It will he seen then that this language describes a parallelogram ; the southeast corner of which is seventy-three feet from Beach avenue, and which is 100 feet wide and 210 feet long. This it describes as running at its north end to the-beach. And the deed then gives certain rights of bathing and fishing on the beach at the north end of the land described, and also at the end of the private street, in common with owners of other lots.

The land in dispute is that, if any, which lies between the north end of the lot above described and the waters of the lake, which land, as the relator claims, is called “the beach.”

October 1, 1885, James M. Whitney and wife conveyed, to Wareham Whitney, as follows: Beginning in the west-line of a private street thirty feet wide, extending from Beach avenue to Lake Ontario, at a point 283 feet northerly from the north line of Beach avenue on the line of said private street, thence westerly at right angles to said private street 100 feet; thence northerly to Lake Ontario;, thence easterly along said lake to the west line of said private street; thence southerly to the place of beginning together with the right of way over said private street. This-reserved to grantor and all others having grants, the right-to use the shore of the lake for boating, fishing and bathing.

November 1, 1886, James M. Whitney and wife and Wareham Whitney conveyed to relator “all right, title and interest of said parties of the first part in and to the beach of said Lake Ontario in front of said private street or avenue, and a distance of 100 feet westerly therefrom; subject to any rights and privileges in said beach which said parties of the first part may have heretofore conveyed.”

Under this deed and one of November 11, 1886, from James M. Whitney and wife to the relator, which seems to-be of substantially the same effect, the relator claims to be the owner of this strip 100 feet long along the lake and of some thirty feet wide. It might be said that a strip so-narrow need not be considered in determining who was. proprietor of lands adjacent to the water; inasmuch as the Brewing company are undisputed proprietors of the land immediately south of this strip. But the facts in People ex rel., Banks v Colgate (67 N. Y., 512) were quite similar; and the court held that the grant was void, although made to one whose land was separated a few feet from the river. And they said that the owner of those few feet might have retained the title (while granting an easement) for the very purpose of subsequently securing for the state a grant, of lands under water.

It will be seen that the deed to Upton conveys by exact, measurement of a certain number of feet. Under the principle laid down in Higinbotham v Stoddard (72 N. Y., 94), these distances must control; even against the language “to the beach of Lake Ontario.” See Buffalo, New York and Erie R. R. Company v. Stigeler, 61 N. Y., 348. But it is not clear that these last words conflict with the measurement. The language is not, “to the shore” or “to the water” but “ to the beach.” And there follows in the deed a grant of an easement over that beach. How by granting an easement over “the beach” the grantor did not mean to grant an easement in lands under water; because it was not his to grant. He referred to something which he called “the beach,” and which lay at the end of the private street and for 100 feet westerly, that is, between the land conveyed and the water of the lake. This easement too was for bathing and boating; showing that the land over which thp easement was granted was adjacent to the water. And if that land was adjacent to the water, then it necessarily follows that the parallelogram of 100 feet by 210 feet was not so adjacent. Furthermore this easement was in common with easements enjoyed by other owners of lots. Clearly such owners had no easements over the lot 100 feet by 210; for that was conveyed absolutely.

_ If the construction of the Brewing Company is correct, viz: that the deed to Upton conveyed land to the waters of the lake then the grantor did the very absurd act of granting to Upton by a subsequent clause in the deed an easement over land which had been conveyed to him absolutely in the prior part of the deed.

Furthermore on the 18th of April, 1885, James M. Whitney and wife conveyed to this Brewing Company certain lands in lot 20. This lot lies west of and adjoining the lot conveyed to Upton. It is bounded ‘ ‘ along the shore of said lake. ” And further the grantors granted thereby to said company “ the right of way over and the use and privilege of the beach of said lake lying north of the lands heretofore conveyed to Charles_ E. Upton by deed recorded, etc., referring to the aforesaid deed, in common with owners of other lots,” etc. Here is an acceptance by the Brewing Company of a right of way and use and privilege, in common with other owners of lots, over the very piece of land called the beach, to which they now say that their grantor Upton obtained absolute title in 1873. And we must observe that the question is as to the title of the Brewing Company not as to the title of the relator. The company must show itself to be an adjacent proprietor before it can be entitled to the grant. And therefore their recognition in 1885 of this strip lying between their land and the water, must show that they were not then adjacent proprietors.

It is of little consequence how wide this strip, called the beach,” was in 1873. There plainly was a strip of land there between the lot conveyed to Upton and the water; a strip over which certain persons had been granted easements, and over which Upton himself was granted a similar easement. The title to that strip with its accretions remained in James M. Whitney, till by conveyances it passed to" the relator. To the proprietor of that strip, and to no one else, could the commissioners of the land ■office lawfully grant lands under water in front thereof. Certainly the brewing company has shown no deeds which -convey this strip to it or its grantors. Our attention is ■called to an assertion in the return that on the final argument before the commissioners, which was after the evidence had been given, it was asserted by the petitioner and not denied by the remonstrant, that the strip of land in question was formed by accretions since September, 1873, and that at, that date the lands conveyed to Upton were bounded by the waters of the lake.

This is certainly no evidence. What one counsel may have said and what another may not have said, cannot affect this question. The evidence had been taken, and is now before us. It contradicts that allegation plainly, because the deed to'Upton shows, as above stated, the existence at that time of a beach (not lands under water) over which Upton accepted the grant of an easement. The brewing company his grantees cannot deny the conveyance under which they claim. Their own deed of 1885 accepts a grant of an easement over this strip of land. Why accept an easement, if they already had title?

It is not credible that the counsel for the relator would have knowingly admitted the truth of an allegation in conflict with every position taken by him, and with every deed on which he relied, in this case. There was no evidence given on the subject of accretion; and the assertion of counsel, whether replied to or not by the opposite counsel, cannot take the place of proof. The certiorari did not call on the commissioners to return the arguments ■or assertions of counsel.

The resolution directing the issue of a grant of land under water in front of these 100 feet is reversed, and the .application of the brewing company is denied- as to that part. No costs.

Landon and Ingaixl, JJ., concur.  