IN SENATE,

February 13, 1832.

OPINION

Of the Attorney-General in relation to grants of land under water; submitted in obedience to a resolution of the Senate.

The Attorney-General, in obedience to the resolution of the Senate, requiring" an opinion on the following questions, relative to grants of land which have heretofore, or may hereafter be given by the Commissioners of the Land-Office, under the act authorizing them to grant land under water around the county of Richmond :

"1st. What rights and privileges are given to the holders of those grants? and

"2nd. How far the public rights and privileges heretofore enjoyed for fishing and other purposes are affected by grants so given ?" RESPECTFULLY SUBMITS THE FOLLOWING OPINION:

By the Rev. Stat. p. 208, sec. 67, it is enacted that "the Commissioners of the Land-Office shall have power to grant so much of the lands under the waters of navigable rivers or lakes, as they shall deem necessary to promote the commerce of this State." And by section 69, it is declared that the "powers of the Commissioners shall also extend to the lands under water, adjacent to, and surrounding Staten Island." The first statute upon this subject after the revolution, was pasɛed May 5, 1786, and was substantially like the present law, with the exception that navigable lakes and the waters surrounding Staten Island were not included. The power of the Commissioners was first extended to those waters by the act of 1815.— The following references will show the progress of legislation on this subject. Laws of New-York, 1 J. and V. 332, sec. 18, act of 1786. 1 Gr. 284, same act. 1 R. L. 1801, p. 299, sec. 11. 5 [S. No. 45.]

1

Web. (1809) 273. 1 R. L. 1813, p. 293, sec. 4. Laws 1815, p. 201. 1 R. S. 208, Art. IV. the present law.

Grants of land under water have uniformly been made without pecuniary consideration, or any other advantage to the State than such as should result from the promotion of its commerce. The letters patent issued in such cases have been in the form usually employed for conveying an estate in fee, and with few exceptions, have contained no condition or reservation.

It does not appear what method was pursued at an early day for ascertaining the real intention of the applicant, or how much land it was proper to grant in any particular case: but in the year 1818, the Commissioners adopted the following general regulations, which have been adhered to ever since.

"Resolved, That no grant of lands under water be hereafter made, unless the applicant make affidavit that he intends forthwith to appropriate the lands applied for to the purposes of commerce, by erecting thereon a dock or docks; and shall also produce an affidavit from the first judge of the county, or the supervisor and town clerk, or two of the assessors of the town in which the said lands are situate, stating that the lands applied for are not more than what are necessary for the purposes aforesaid, and that they believe that it is the bona fide intention of the applicant to appropriate the said lands to the purposes of commerce.

"Resolved, That this board will not act upon any application for lands under water, unless the same be accompanied with an accurate map and full description of the lands applied for, and those adjoining."

It was believed that these regulations would furnish a sufficient safeguard against fraud and imposition; and that no man would apply for a grant with the secret intention, contrary to his oath, of appropriating the land either in whole or in part to any other purpose, than that contemplated by the statute. But a case is said to have occurred the last year, where a patentee, without having done any thing whatever for the advancement of commerce, has set up a claim to the exclusive right of fishing, which was before common to all the eitizens. Should the facts of this case prove to be such as have been mentioned, the patent may be repealed by scire facias, on the ground that it was obtained upon false and fraudulent suggestions; and the proper legal measures will be taken for that purpose.

But fraud in obtaining the patent is not the only ground on which the grantee of lands under water, may lose his rights; for it is believed that a condition is implied by law in every such grant, that the land shall within a reasonable time, be applied to the purposes contemplated by the statute; and that the neglect to make such appropriation will work a forfeiture of the estate.

Independent of the consideration that patents of this description may be annulled on the ground of fraud or forfeiture, the AttorneyGeneral is inclined to the opinion, that such grants do not under any circumstances confer on the holders the exclusive right to use the lands for any purpose other than that mentioned in the statute. And if this opinion be well founded, it follows as a consequence, that un. til the premises are actually appropriated to the specified object, such rights and privileges as were before enjoyed in common by the citizens, are neither taken away or impaired by the grant.

For the purpose of obviating all doubt on this subject, the Attorney-General has prepared, and the Commissioners of the Land-Office have adopted, a new form of letters patent to be issued in future, which will effectually guard the public against all impositions.

Respectfully submitted,

GREENE C. BRONSON,

Feb. 13, 1832.

Attorney-General.

IN SENATE,

February 13, 1832.

REPORT

Of the committee on the division of counties and towns, on the bill to divide the town of Deerfield, in the county of Oneida.

The committee on the division of counties and towns, to whom was referred the engrossed bill from the Assembly, entitled "An act to divide the town of Deerfield in the county of Oneida," ask leave to

REPORT:

The town of Deerfield is situate opposite the city of Utica, and the villages of Whitesboro' and Oriskany. It forms an L in shape; and the petitioners seek to cut off the base of the L, west along the Mohawk river, and form it into a new town by the name of Marcy.

The population of the present town of Deerfield is 4182. If divided in the manner petitioned for, and specified by the bill, it will leave about 2300 inhabitants in the old town, and about 1800 in the

new.

The proposed division will leave the town of Deerfield about 3 miles wide from east to west, and about 10 miles in length north and south; and the new town will be about 6 miles east and west on the river, and 5 miles north and south.

The town-meetings have always heretofore been held at the corners, about a mile from Utica, on the southeast extremity of the town, and within two miles of the eastern line of the county. To those inhabitants residing at and near the corners, and to the settlement north, this place (as it is in the direct route to market) cannot be considered as ineligible; but to those who reside in the western part of the town, and whose usual route is to cross the Mohawk ei[S. No. 46.]

1