THIRD DEPARTMENT, MARCH TERM, 1897.

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The general rule relative to conveyances is that, if there is a particular description and a general one, the particular one must prevail.

The question as to whether the town of Oyster Bay owns the land within the limits of Hempstead harbor, considered, and a decision of the Commissioners of the Land Office to the effect that the proof did not establish such ownership, sustained. Presumptively the lands under tidewater belong to the State. The Commissioners of the Land Office are given discretionary powers in making grants of land under water, and their determination in the exercise of such discretion is not reviewable.

The commissioners may waive or modify their own rules, and may, on an application for a grant, accept the affidavit of one of the assessors of a town, although their rules require that the affidavit should be made by two assessors. CERTIORARI issued out of the Supreme Court and attested on the 17th day of July, 1896, directed to Charles T. Saxton and others, as Commissioners of the Land Office of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings relating to the granting of the application of Charles A. Dana for nine and twentyseven one-hundredths acres of land under the waters of Long Island sound, in front of and adjacent to uplands of said Dana in the town of Oyster Bay, in the county of Queens.

Three other similar applications were made at the same time to the commissioners, one of Louis T. Duryea and another for six and forty-nine one-hundredths acres, and one of Louise B. W. Ladew for twenty-eight and five hundred and seventy-five one-thousandths acres, and one of the North Country Company for eight and four onehundreths acres, and all were heard together, the same proofs being used in all the cases. All the applications were granted. Separate certioraris were obtained in each, but were all submitted together in this court.

Edward Cromwell and Thomas Young, for the relator.

T. E. Hancock, Attorney-General, for the Commissioners of the Land Office.

Franklin Bartlett, for Charles A. Dana.

Wilmot T. Cox, for the North Country Company.

MERWIN, J.:

The main questions in the four cases submitted are the same, and the cases may, therefore, be considered together.

App. Div.]

THIRD DEPARTMENT, MARCH TERM, 1897.

The applications were presented to the commissioners on March 16, 1896, and, as stated in the returns, were substantially as required by the rules of the commissioners. Each application was accompanied by two maps showing the uplands of the respective applicants, the land under water applied for and the shore lines adjacent thereto. Notice of each application was published and posted as required by section 71 of chapter 317 of the Laws of 1894, being the Public Lands Law. The notice stated that any person deeming himself liable to injury by the grant desired, should file with the commissioners a remonstrance stating his reasons for opposing the grant. Thereupon a remonstrance was filed on behalf of the town of Oyster Bay, in which it was claimed that the town was the owner of the premises applied for. A remonstrance was also filed, purporting to be signed by a large number of residents and taxpayers of the town, opposing the applications upon the ground that the granting of them would seriously interfere with the occupation of many people as baymen, and that the premises, if not belonging to the town, belonged to the State in trust for all its inhabitants and were not needed by the applicants to promote commerce or for the purpose of beneficial enjoyment by the adjoining owners. An affidavit was also filed, made by the supervisor of the town and several ́ other town officers, stating that they did not believe it to be necessary, for the full beneficial enjoyment of the lands applied for, that the applicants should be granted an estate in fee. In accordance with the standing resolution of the commissioners, the applications were referred to the standing committee on hearing remonstrances, such committee consisting of the Attorney-General and the State Engineer; and the State Treasurer was by resolution added to the committee. The committee were directed to hear the parties in interest and report to the board. After due notice a hearing was had, on the 26th of April, 1896, at the office of the AttorneyGeneral, before the State Engineer, the State Treasurer and Mr. Baker, land clerk, representing the Attorney-General by his direction. The remonstrants at the commencement of the hearing objected to the hearing before a committee, and claimed that it should be before the full board or a legal quorum thereof. This objection was overruled by the committee and the hearing proceeded. This ruling is claimed to be error.

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Had the Attorney-General been present, there would have been a legal quorum of the board. (§ 2, chap. 317 of 1894.) In his absence a majority and, therefore, a quorum of the committee was present. No objection was made to the presence of Mr. Baker or to his acting with the committee. He was there apparently as their legal adviser. He was not, however, a member of the committee. A majority of the committee being present, they had a right to act on the subject referred, so that the only question on this subject is whether the board had a right to make the reference to the committee. It was in accordance with their practice in such cases.

By section 9 of the act above referred to it is provided as follows:

"9. Before granting any lands or any interest therein, including lands under water, the commissioners may summarily inquire into the rights of the person applying for such grant, on such proof as, by regulation, they prescribe. They may take testimony and proofs in any matter or application before them, and the fees of witnesses and the expenses of procuring their attendance, on being certified by the commissioners, shall be paid by the treasurer on the warrant of the comptroller. They shall establish reasonable rules to guard against false or fraudulent applications and for such other purposes as they may deem proper."

Under this, the commissioners had the right to summarily inquire into the rights of the applicants, on such proof as by regulation they might prescribe. This would seem broad enough to cover the whole proceeding. The statute makes no special provision for the manner in which remonstrances shall be heard or considered. The parties were given a full and free hearing before the committee. The proofs taken by the committee were reported to the board, and, as the commissioners certify, opportunity was given for a further hearing before the commission in regular meeting assembled. The objection, when taken before the committee, was treated as formal, as from its character it naturally would be. The board itself was the proper body to consider an objection of that kind. It does not appear to have been raised before the board, although there was opportunity for doing so. It does not, I think, furnish any good ground for reversal. (See People ex rel. Flanagan Police Comers., 93 N. Y. 97, 103.)

Bd.

App. Div.]

THIRD DEPARTMENT, MARCH TERM, 1897.

A point is made as to another objection, taken by the remonstrants at the same stage of the case, that the affirmative was upon the applicants, and they should be required to give their proof first. The committee were directed to hear the parties in interest and report to the board. The papers already filed with the board by either side were apparently before the committee. The duty of the committee was to take such proof as any party might present. It was not important which side presented its proof first as long as full opportunity was given to all to present all the proof they desired. The decision of the case was not with the committee, but with the board. It is not apparent that in the ruling referred to any rule of law affecting the rights of the parties was violated to the prejudice of the relator.

A more important question arises upon the subject of the ownership of the premises. The claim of the town of Oyster Bay is that all the lands applied for are within the limits of Hempstead harbor, and that Hempstead harbor, at least the eastern part of it, including the lands in question, is within the bounds of a tract of land granted by Gov. Andros, by patent dated September 29, 1677, to Henry Townsend and others, as patentees on behalf of the town. In this patent there is first a recital as follows:

"WHEREAS, there is a certain town in the north riding of Yorkshire upon Long Island commonly called and known by the name of Oyster Bay, situated, lying and being on the north side of the said island toward the sound, having a certain tract of land thereunto belonging, the east bounds whereof being at the head of the Cold Spring, and so to range upon the southward line from the sound or north sea, to the south sea across the island to the southeast bounds of their south meadows, at a certain river called by the Indians Narrasketuck;' thence running along the seacoast westerly to another certain river called 'Arrasquaung;' then northerly to the eastward extent of the great plains, when the line divides Hempstead and Robert Williams' bounds; from thence, stretching westerly, along the middle of the said plains till it bears south from the said Robert Williams' marked tree at the point of trees called 'Cantiage; then on a north line to the said marked tree; then on a northwest line, somewhat westerly, to the head of Hempstead Harbor on the east side so to sound; and from thence easterly

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along the sound to the aforementioned north and south line which runs across the island by the Cold Spring aforesaid, bounded on the north by the sound, on the east by Huntington limits, on the south part by the sea and part by Hempstead limits, and on the west by the bounds of Hempstead aforesaid, including all the necks of land and islands within the aforesaid described bounds and limits."

Then follows the grant to the patentees of "all the aforementioned tract of land within the said bounds, with the islands and necks of land as aforesaid, together with all the woods and plains, meadows, pastures, swamps, marshes, waters, lakes, rivers, fishing, hawking, hunting and fowling, and all other profits, commodities, emoluments and hereditaments to the said town tract of land and premises within the limits and bounds aforementioned described, belonging or in anywise appertaining."

The remonstrants also put in evidence a patent of the town of Hempstead dated April 17, 1685, from Gov. Dongan to John Seaman and others, as patentees for the benefit of that town. This town is westerly of the town of Oyster Bay. The description in the patent, after proceeding on the west side to the sound or East river, proceeds as follows: "and so round the points of the necks till it comes to Hempstead Harbor, and so up the Harbor to a certain barren sand beach, and from thence up a direct line till it comes to a marked tree on the east side of Cantiagge Point, and from thence a south line to the middle of the plains, and from thence a due east line to the utmost extent of the Great Plains, and from thence upon a straight line to a certain tree marked in a neck called Maskachoung, and so from thence up a due south line to the South Sea, (and the said South Sea is to be the south bounds from the east line to the west line, and the sound or East River to be the northerly bounds), as according to several deeds purchased from Indian owners, and the patent from the Dutch Governor, William Kieft, relation thereto being had doth more fully and at large appear."

It is not claimed that the town, under the Andros patent, had any title to lands on the sound beyond the ordinary high-water mark. The claim is that Hempstead harbor is not a part of the sound, and that the lands in question are in the harbor. It is not clear that the lands are within the bounds of the harbor. Where the line is