16 Johns. 257 | N.Y. Sup. Ct. | 1819
The lessors of the plaintiff claim title to seven-eighths of the premises in the possession of the defendants, respectively, as part of lot No. 37. in Aurelius ; and the defendants, independently of objections to the plaintiff’s deduction of title, insist, that the premises are part of lot No. 46. in the same town.
In deciding this case, we do not deem it necessary to examine, or decide, the several questions made as to the deduction of title by the lessors of the plaintiff, but we proceed entirely on tjie location of the lots.
In the patents for the military lots, they are described as
Whatever may be the equity and justice of this claim, as between the original patentees, we can only consider what are the legal rights of the parties.
The letters patent were issued in such form as the commissioners of the land office saw fit to adopt. In giving a construction to the patents thus issued, we must refer to the acts of the legislature, which authorized the commissioncrs to act; and to arrive at the intention of the legislature, we must regard all the provisions contained in the. statute, and the sense and import of the letters patent.
These patents were issued under the act of the 6th of April, 1790, entitled, “ An act to carry into effect the concurrent resolutions and acts of the legislature, for granting certain lands, promised to be given as bounty lands, and for other purposes therein mentioned.” (2 Greenleaf’s ed. of Laws, 332.) The 3d section of the act made it the duty of the surveyor general to sub-divide the townships, the exterior lines of some of which had been before run out, into one hundred lots, each of which was to contain 600 acres. The. 4th section of the act subjects 50 acres, in one of the corners of the respective lots, to the payment of six dollars to the surveyor general, for his services and expenses in marking, numbering, and surveying the lots; and he is authorized, and required, if that sum shall remain unpaid for two years after the patents are issued, to sell 50 acres of each lot, and the purchaser is declared to be vested, in consequence o.Q
The map, necessarily, represents the lots as of équal size, each containing 600 acres, and it shows their relative locality ; but it furnishes nothing whereby the individual lots, can be ascertained on the land, short of a survey of all the lots, on which the" location of any particular lot depends. The legislature never intended to leave the patentees in that situation; and in directing the surveyor general to subdivide the townships into"lots of 600 acres each, they intended that the lots should be practically located, by mark- ■ ing and numbering them, in such a manner that the patentees could, with the aid of the map, ascertain their individual lots ; and it must have been contemplated by the legislature, that field books of the survey of the lots would accompany . the map.
If we regard the map alone, in giving location to the lots# all that part of the statute is disregarded, which required the ■ towns to be practically subdivided into lots; and in all cases, the lines of lots, and the marking and numbering the corners, goes for nothing, if there be an excess or deficiency in quantity in any of the lots, hoxvever small the difference may be. To carry into effect the intention of the legislature, the lots must be located in reference to the authority and provisions of the statute under which the letters patent were issued; and although the patents have no reference to the actual survey and location of the lots, yet, as the legislature made the survey, and marking and numbering the lots, a pre-requisite to the issuing the patents, the actual survey Must be deemed part and parcel of the description.
The military lots were a gratuity from the state for meritorious services of the highest order; the legislature had the right, as donors, to prescribe the conditions of the gift. The letters patent could mislead no one. The title is pri
The reservation of 50 acres in one of the corners of the respective lots, and subjecting them to sale, if the sum of six dollars for marking, numbering, and surveying each lot, remained unpaid, for two years after issuing the respective patents, and the provision that the purchaser shall be vested with the fee of the lands so to be sold, clearly shows that the legislature meant, that the subdivision of the lots by the surveyor general, or his agents, should definitively fix their location. The 50 acres thus set apart, are to be “ in one of the corners of the respective lots so laid outand, it appears, in' this case, that Smith, when he first entered into possession, went into the occupation of 50 acres in the north east corner of lot No. 46. under a purchase of the same from Van Cortlandt, and these 50 acres were sold as part
The sixth section of the act confirms the construction already given : It directs the commissioners of the land office to provide one hundred ballots, or tickets, for each, township, numbered from number one progressively ; that the ballots shall be put into a box, and whenever they shall have determined that any particular person applying for. bounty or gratuity land is entitled to the same, they shall' cause one ballot or ticket to be drawn out of the box ; and. it provides, “ that the lots in each township, so drawn, shall' he the separate and distinct share of such person, or, of his. heirs and assigns.”
What constituted the parcels of land, thus set apart, lots, but the subdivision of the townships, by surveying, marking,, and numbering them on the ground ? The letters patent founded on the drawing of the ballots, gave the grantees a. right to patents for the lots corresponding with-the numbers, drawn.
It cannot be denied, that in the case of Jackson v. Hunter, (1 Johns. Rep. 495.) this Court expressed an opinion, that as a mistake had occurred in running the line dividing the lots, and as the map filed in the office of the secretary of state, and referred to in the patent, was correct and agreeable to law, and that as the deputy surveyor was appointed without the consent of the parties, and as nothing had been done to conclude the rights of the plaintiff to have the mistake corrected, the plaintiff was entitled to judgment.
I am free to declare, that upon further consideration, 1 am satisfied that the opinion delivered in Jackson v. Hunter cannot be supported ; and that it was founded upon too narrow a view of the act. I am not authorized to say that my brethren fully and explicitly renounce the opinion delivered in Jackson v. Hunter, though I understand them to incline to consider it incorrect. They do not consider this case as requiring them expressly to overrule that case. We all concur in the opinion, that the sale of 50 acres in the north east corner of lot No. 46. gave the purchaser a full and complete title to the 50 acrek, as actually located, as part and parcel of lot No. 46., and that the north east corner of the 50 acre lot is to be considered the north east corner of lot No. 46. as regards all parties interested in the two lots, Nos. 37. and 46. ; and that the lines of lot No. 46. must conform, in toto, to that location. We are, also, of opinion, that the acts of the parties in this case, ifitwas necessary to have recourse to them, have definitively fixed the boundary line between lots No. 37 and No. 46. as held and contended for by the defendants.
With respect to the re survey made by Annin, in 1802, under the directions of the surveyor general, it was an unauthorized act. The surveyor general had, long before that period, executed the powers vested in him. He was functus officio ,* and Annin’s acts were those of a private individual.
Judgment for the defendants.