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$$ 6,7

Commissioners of Land Office

L. 1909, cha 50

6. See infra, $ 6 note. It was cited in New York Cent., etc., R. Co. v. Brockway Brick Co., (1899) 158 N. Y. 470, 53 N. E. 209, affirming 10 App. Div. 387, 41 N. Y. S. 762, in connection with the question as to the admissibility in evidence under section 933 of the Code of Civil Procedure of a certified copy of a patent recorded in the office of the secretary of state.

$ 6. Refunding purchase-money on failure of title. Whenever the title of the state to lands granted under its authority fails, and a legal claim for compensation on account of such failure is preferred by any person entitled thereto, the commissioners of the land office shall direct the payment of the original purchase-moneys which may have been paid to the state by such person, with interest at the rate of six per centum from the time of such payment, to be paid out of the treasury on the warrant of the comptroller.

This section was derived from the Public Lands Law of 1894, $ 5.
Section 6 of the Public Lands Law of 1894 is now covered by section 7.
Action to racate letters patent: see Code (iv. Pro., $ 1957 et seq.

Rules and regulations governing applications for refunding of purchase moncys on account of alleged failure of state's' title: see Op. 'Atty.-Gen. (1901) 340.

Issue of letters patent as essential to grant. - Lands are not “granted within the meaning of the present section unless letters patent have issued. Op. Atty.-Gen. (1901) 326; Op. Atty. Gen. (1898) 334.

Meaning of “legal claim.”_-_The legal claim mentioned in this section is a claim which is good and valid in law, and such as would afford a remedy to a grantee in a deed from a private person. There, therefore, the letters patent instled to a purchaser at å sale of state lands are mere quitclaims, containing no covenants, and expressly provide that “ These presents shall in no wise operate as a warranty of title," the failure of the state's title does not entitle the purchaser io a refund of the purchase money. People v. Woodruti', (1901) 57 App. Div. 342, 68 N. Y, S. 100; Op. Atty.-Gen. (1909) 949; Op. Atty-Gen. (1906) 324; Op. Atty.-Gen. (1900) 288; Op. Atty.-Gen. (1898) 306. See also Op. Atty.-Gen. (1910) 973; Op. Atty.-Gen. (1900) 187.

What constitutes failure of title.-- The application of the words whenever the title of the state to lands granted under its authority fails” is not to be contined to cases where originally the state had a title, but the language must be construed to include those cases where the state never had any title. Op. Atty. Gen. (1895) 405. See also Op. Atty.-Gen. (1895) 376.

Amount of award.-An award upon a claim presented under the present section for the purchase price of the land from which the purchaser has been evicted, with interest, and for the costs and expenses incurred by him in resisting eviction, is properly made. The purchaser is not entitled, however, to the increased value of the land at the time of his eviction. Wheeler v. State, (1907) 190 X. Y. 106, 83 V. E. 54, 123 A. S. R. 555, modifying judgment 118 App. Div. 913, 103 X. Y. S. 1150.

Duties of commissioners as enforceable by mandamus.- The duties of the commissioners of the land office, in determining the questions arising under the present sertion, are not ministerial but judi«ial in character, and performance thereof in å particular manner cannot be enforced by mandamus. People v. Land Office Com'rs, (1896) 19 N. Y. 26, 43 V. E. 418, reversing 90 llum 525, 36 Y. Y. S. 29. See also. People v. Woodruff, (1901) 57 App. Div. 342, 68 N. Y. S. 100.

Cited. This section was cited in Matter of Olmstead, (1995) 11 Visc. 700, 32 X. Y. S. 1124; Op. Atty.-Gen. (1908) 589; Op. Itty-Gen. (-1904) 459; Op. Atty.-Gen. (1901) 467; Op. Alty-Gen. (1902) 417.

$ 7. Partition of lands held by the state in joint tenancy or tenancy in common. Whenever the state owns an uudivided in

L. 1909, cha 50

Commissioners of Land Office

§ 8

terest with any person in real property within this state, not a part of the forest preserve, or holds and is in possession of any such real property, as joint tenant or tenant in common with any person within this state who has an estate of freehold therein, such person may, on obtaining the written consent of the comptroller thereto, maintain an action for the partition of such property according to the respective rights of the parties interested therein, and for a sale thereof, if it appears that actual partition can not be made without great prejudice to the owners, in the same manner as if the state were not entitled to exemption from legal proceedings, and with the same force and effect as in other cases, except that no costs against the state shall follow judgment thereon. I copy of the summons and complaint in such action shall be served upon the comptroller, who shall de liver the same to the attorney-general for proper appearance for the state. The attorney-general, when so directed by the commissioners of the land office, shall cause partition to be made of any real property held in joint tenancy or tenancy in common, in which the people of the state are interested, and for that purpose he may, in the name of the people, do all such acts as any joint tenant or tenant in common is authorized by law to do.

This section was derived from the Public Lands Law of 1994, § 6. Section 7 of the Public Lands Law of 1994 is now covered by section 8. Partition when state is interested: see ('ode Civ. Pro. $ 1594.

§ 8. Trespasses upon state lands. The commissioners of the land office may require the sheriff of any county to examine and report to them, and to the district attorney of his county, all trespasses committed upon Indian lands, or lands belonging to the state, other than the forest preserve, in such county. I district attorney, on receiving such report and whenever directed by the commissioners, shall commence and prosecute actions, in the name of the people of the state, against such trespassers, for damages and the penalties imposed by law; and may present the complaint against such trespassers to the grand jury of his county.

This section was derived from the Public Health Law of 1994, § 7. Section 8 of the Public llealth Law of 1994 is now covered by section 9. Trespasses upon lunds other than forest preserre: see infra, $ 17.

Power of conserration commission to determine in traspass, ejectment or other suitable actions tille io any land claimed adversely to stute: see ('ONSERVATION LAW, $ 50, subd. ll.

Forest rangers to prerent trespass upon state land: see ('ONSERVATION LAW, $ 51, subd. 10.

Malicious injury to and destruction of property on state lands: see PENAL LAW, § 1425, subds. 1, 3.

Intrusion and trespasses on tribal lands: see INDIAY LAW, SS 8, 1l; PENAL LAW, $ 1160.

Cited. — This section (former section 7) was cited in Op. Atty.-Gen. (1907) 262; Op. Atty.-Gen. (1897) 218.

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Commissioners of Land Office

L. 1909, cha 50

§ 9. Penalty for trespasses. Every person who shall trespass upon any land belonging to the people of the state, by cutting or carrying away timber growing thereupon, shall, for every such offense, forfeit to the people of the state the sum of twenty-five dollars for every tree cut or carried away by him or under his direction. The district attorney shall apply all such penalties, when collected, first to the payment of the costs and expenses incurred in the prosecution of such action, including a reasonable compensation to the plaintiff's witnesses, to be certified by the court before which the trial was had, and shall pay the residue thereof into the treasury of the county. Whenever execution shall be issued upon judgments recovered in actions for such penalties, and the body of any defendant shall be arrested thereon, he shall be imprisoned according to law, without being entitled to the liberties of the jail.

This section was derived from the Public Lands Law of 1894, § 8, and also from R. S., pt. 1, ch. 5, art, 5, § 76.

Section 9 of the Public Lands Law of 1894 is now covered by section 10. Cutting trees or timber on forest preserve : see CONSERVATION LAW, $$ 61, 63.

Adjustment of claims for trespiss by conservation commission : see CONSERVATION LAW, § 59, subd. 14.

Cited.-- This section was cited in Op. Atty.-Gen. (1899) 144; People v. McFadden, (1835) 13 Wend. 396.

$ 10. Power to investigate before grant. 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 atteulance, ou 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.

This section was derived from the Public Lands Law of 1894, § 9. Section 10 of the Public Lands Law of 1894 is now covered by section 11. Porrer to administer oaths: see Code ('iv. Pro., $ 813.

Compelling attendance and testimony of witnesses: see (Code Civ. Pro., § 854 et seq.

Hearing of application by committee of board.— The land commissioners may refer an application for i grant of public land to a committee of the board, and a majority of the committee may hear the application. People v. Saxton, (1897) 15 apr. Div. 263, 44 N. Y. S. 211, aflirmed (1897) 154 N. Y. 748, 49 V. E. 1102.

Cited.— This section was cited in Op. Atty.-Gen. (1905) 591, in connection with the subject of application to work mines under Section 85.

$ 11. Power to confirm defective grant. Whenever a sale is lawfully made, or directed to be made by such commissioners, including a sale of land under water, if, at the time of the adop

L. 1909, chu 50

Commissioners of Land Office

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tion of the resolution to make the grant, the necessary jurisdictional facts existed to authorize the grant, and by reason of accidental omission or manifest error, the patent is not actually is ed, or has been issued to the applicant deficient or manifestly erroneous in description or otherwise, such commissioners may, in their discretion, and on such terms as seem to them proper, cause to be issued to such applicant, or to persons, deriving claim or title from him subsequently to the passage of such resolution, a release or confirmatory grant of such lands or any parts thereof, which release or confirmatory grant shall vest in the grantee therein named such right and estate, to the extent of the right or title of the state in such lands, or parts thereof, as is therein named.

This section was derived from the Public Lands Law of 1894, § 10. Section 1l of the Public Lands Law of 1894 is now covered by section 12. Action to vacate letters patent: see ('ode Civ. Pro., § 1957 et seq.

When power exists.— The power to confirm defective grants is conferred upon the land commissioners by the present section when either of two conditions exist: first, when a sale has been lawfully made or directed and all the jurisdictional facts existed to authorize the grant but through some accidental omission or manifest error the patent has not actually issued; and, second, where a patent has been issued but is “deficient or manifestly erroneous in description or otherwise.” Op. Atty.-Gen. (1909) 255, 973, 979. See also Op. Atty.-Gen. (1906) 671.

Cited. This section was cited in Op. Atty.-Gen. (1910) 967; Op. Atty.Gen. (1907) 615; Op. Atty.-Gen. (1907) 625; Op. Atty.-Gen. (1905) 570; Op. Atty.-Gen. (1903) 558; Op. Atty.-Gen. (1903) 561; Op. Atty.-Gen. (1902) 358; Op. Atty.-Gen. (1902) 365; Op. Atty.-Gen. (1898) 315; Op. Atty.-Gen. (1897) 360.

$ 12. Certain patents and grants ratified. All patents of lands issued before July eleventh, eighteen hundred and eightyone, pursuant to resolutions of the commissioners of the land office, and sold by them at private sale to purchasers in good faith, purporting to convey the right, title and interest of the people of this state in and to any state lands, except lands under water in the bay or harbor of New York or adjacent thereto, have been ratified and contirmed, to as full an extent as though the same had been solid at public auction, according to law, but not so as to affect any action pending July eleventh, eighteen hundred and eighty-one, or to impair, release or discharge any right, claim or interest of any person in and to such lands. Il grants made by the commissioners of the land office prior to March twentyfifth, eighteen hundred and forty-one, of parts of lots for which payments were made and certified in the manner prescribed by law, have been confirmed.

This section was derived from the Public Lands Law of 1894, § 11. Section 12 of the Public Lands Law of 1894 is now covered by section 13. Certain patents ratified and confirmed: see infra, § 69.

§ 13. Grants to heirs or devisees. The heirs or devisees of any person to whom a grant of land is ordered, pursuant to law,

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Commissioners of Land Office

L. 1909, cha 50

but who dies before the issue thereof, shall be entitled to such grant, on complying with the conditions on which the grant was to have been made. If any of the purchase-money remains unpaid to the state, and if the execution of securities for the payment of such purchase-money or any part of it, is one of the conditions required of the grantee, the heirs and devisees, if of age, shall execute such securities, but if not of full age, the treasurer and comptroller shall open in their respective offices an account with them for such purchase-money, and the treasurer shall receive payments and give receipts on such accounts. When such account is paid in full, the grant shall issue to such heirs or devisees, and in case of default in the payment of the moneys due on such account, according to the conclition of the grant, the commissioners may direct the state engineer to sell the land at public auction.

This section was derived from the Public Lands Law of 1894, § 12. Section 13 of the Public Lands Law of 1894 is now covered by section 14.

$ 14. Time of performing conditions of grant. The commissioners of the land office may, unless otherwise provided, fix a reasonable time, not less than one year, for the performance of conditions by the grantees of lands directed to be sold on the performance of conditions. A notice of the time so fixed shall be published in the state paper at least once a week for six suiccessive weeks, and a copy of such notice shall be mailed to the persons interested, whose post-office addresses are known. If such conditions are not performed within the time limited by such notice, the persons entitled to any benefit under such grant shall forfeit all right to and title in the premises. When the time within which any condition contained in any grant of land is fixed by the terms of the grant, the commissioners of the land office may, for good cause shown before the expiration of such time, extend the time within which such condition is to be performed, not exceeding three years.

This section was derived from the Public Lands Law of 1894, § 13. Section 14 of the Public Lands Law of 1894 is now covered by section 15.

$ 15. Prohibitions as to grants in Lake George. No grant or lease of any of the islands in Lake George, or of any land upon any of such islands, shall be made by the commissioners of the land office.

This section was derived from the Public Lands Law of 1994, § 14. Section 15 of the Public Lands Law of 1894 is now covered by section 16.

$ 16. Reservation of Esopus island. Esopus island, in Dutchess county, is reserved from settlement, occupancy, lease or sale, and dedicated and set apart as a public park. The commis

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