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$$ 31, 32

Unappropriated State Lands

L. 1909, cha 50

Communal forests: see CONSERVATION LAW, $ 60.

Constitutional limitations on power of eminent domain: see CONSTITUTION, art. 1, $$ 6, 7.

Cited.—This section was cited in Jackson v. Rowe, (1905) 106 App. Div. 65, 94 N. Y. S. 568, affirmed (1908) 191 N. Y. 512, 84 N. E. 1114, in connection with the construction of sections 131 and 132 of the Tax Law. It was cited in Op. Atty.-Gen. (1898) 326, in connection with the question as to the proper action that should be taken to collect the amount due the state on bonded lands. It was cited in Op. Atty.-Gen. (1898) 139, in connection with the construction of section 92 of the State Finance Law, and section 5 of the Tax Law. It was cited in Op. Atty.-Gen. (1899) 401, in connection with the question as to the supervisory care of the commissioners of the land office over property in the custody of the federal loan commissioners. See supra, § 3 note. It was cited in Op. Atty.-Gen. (1905) 607, and Op. Atty.-Gen. (1902) 408, in connection with the question as to the manner and method of sale of abandoned canal lands. See infra, § 50

et seq.

$ 31. Surveys by state engineer. The commissioners may, whenever they deem it necessary, direct the state engineer to cause actual surveys to be made of any of the unappropriated state lands. Before making such a survey, the state engineer shall obtain from the commissioners a certificate directed to the comptroller, containing their estimate of the expenses thereof, which he shall deliver to the comptroller, and the sum at which such expenses are estimated therein shall be paid to the state engineer out of the treasury. The surveyors appointed by the state engineer to survey any mappropriated state lands for the purpose of a sale thereof, shall appraise the value of each lot, exclusive of the improvements thereupon exceeding the value of twenty-five dollars, and deliver such appraisement, with the returns of such surveys and maps of the lots surveyed, and a field book containing an account of the soil, timber and local advantages of each lot to the state engineer, who shall cause a copy to be filed in the secretary of state's office. Before making such survey and appraisement, each surveyor shall take and subscribe the constitutional oath of office, and file the same in the state engineer's office.

This section was derived from the Public Lands Law of 1894, § 31.

General duties of state engineer: see EXECUTIVE LAW, § 72. Form of constitutional oath: see ('ONSTITUTION, art. 13, § 1.

$ 32. Maps. The state engineer shall make or cause to be made a map of each tract so surveyed, distinguishing upon such maps the towns and county in which the lots are situated, and deposit the same in his office, and a copy thereof in the office of the secretary of state. Such maps and copies shall be open to the inspection of every person, during the office hours of business, until the lands described thereupon be sold.

This section was derived from the Public Lands Law of 1894, § 32. It was amended to read as above by L. 1909, ch. 240, § 67a. This amendment struck out that part of the second sentence, following the words “shall be open to,” which read as follows: " the state engineer to sell the imappro

4. 1909, ch....50

Unappropriated State Lands

$$ 33, 34

priated state lands, not otherwise directed to be disposed of, or the sale of which is not prohibited, at public auction in such parcels as they deem for the best interests of the state and for the promotion of the settlement thereof; but not more than twenty thousand acres shall be sold at any one auction, and each lot shall be separately exposed to ". This amendment restored the section to its original reading as enacted in the Public Lands Law of 1894, § 32, and corrected an error in the “consolidated ” Public Lands Law as enacted in 1909 by which a portion of section 33 was erroneously included in the text of section 32.

Maps in office of sinie engineer to be open for public inspection: see EXECUTIVE LAW, § 73.

§ 33. Notice and place of sale of unappropriated state lands. The commissioners may, from time to time, direct the state engineer to sell the unappropriated state lands, not otherwise directed to be disposed of, or the sale of which is not prohibited, at public auction in such parcels as they deem for the best interests of the state and for the promotion of the settlement thereof; but not more than twenty thousand acres shall be sold at any one auction, and each lot shall be separately exposed to sale. Previous to every sale, they shall furnish the state engineer a statement of the lowest sum at which each lot may be sold, and shall designate at least one newspaper in the county where the lands to be sold are situated, in which the state engineer shall cause notice of the time, place and conditions of sale to be published, at least once a week for at least eight weeks, successively, before the sale. All such sales shall be held in the city of Albany, unless otherwise directed by the commissioners of the land office.

This section was derived from the Public Lands Law of 1894, $ 33.
Sale of abandoned coal lands: see infra, $ 50.

State canals not to be sold, leased or otherwise disposed of: see CONSTITUTION, art. 7, $ 8.

State forest preserre not to be leased, sold or exchanged: see ('ONSTITUTION, art. 7, $ 7.

Constitutional limitations on power of eminent domain: see ('ONSTITUTION, art. 1, $$ 6, 7.

State lands under contract of sule as subject to turution: see Ann. (as. 1917C 129.

Cited. - This section was cited in Op. Atty.-Gen. (1899) 101, in connection with the question as to the supervisory care of the commissioners of the land office over property in the custody of the federal loan commissioners. See supra, $ 3 note.

$ 34. Payment by purchaser; certificates of purchase. At the time of directing each sale, the commissioners shall prescribe the proportion of purchase-money to be paid at the time of sale, taking into consideration the value and situation of the lands and timber thereupon. Such proportion of the purchase

money shall be at least twenty-five per centum. The purchaser of each lot or tract sold, shall pay to the state engineer within ten days after the sale, the first payment required thereon, and execute a bond to the people of the state conditioned for the payment of the residue of the purchase-money, in six cqual annual instalments

4

§ 35

Unappropriated State Lands

L. *1909, cha 50

with interest. In no case shall a bond be taken or credit given for less than fifty dollars. If a purchaser refuse or neglect to make such payment or deliver such bond, he shall, for each such refusal or neglect, forfeit to the people of the state, the sum of fifty dollars. The state engineer, on the receipt of such payment and bond, shall deliver the bond to the comptroller and deliver to the purchaser a certificate, containing the name of the purchaser, a description of the land purchased, the sum paid and the sum remaining unpaid thereon. Such certificate shall not confer on the purchaser any right to cut down or destroy any kind of wood or timber standing or growing upon such land, unless such right be expressly granted therein, or unless he be entitled by virtue of the certificate to the immediate possession of such land, in which case he may, unless the certificate otherwise provide, use and apply any wood or timber upon the land, for the purposes only of erecting fences or buildings thereupon, necessary firewood for his family, and the actual and fair improvement of such land for the purposes of cultivation.

This section was derived from the Public Lands Law of 1893, § 34.

Application of section.— It was held in Allen v. Land Office Comr's, (1868) 38 N. Y. 312, that the provision of the present section as to the first pay. ment was not applicable to a resale of lands, but only to first or original sales by the state.

Acceptance of check for purchase money as invalidating sale. - The acceptance of a check by the state engineer for the purchase money does not invalidate the sale where the check is (ashed and the proceeds turned into the state treasury within the ten days after the sale. Op. Atty.-Gen. (1908) 597.

$ 35. Issue of patents. On the production to the commissioners by the purchaser, his representatives or assigns, of the state engineer's certificate with the treasurer's receipt for the whole of the purchase-money, the comptroller shall cancel the purchaser's bond on such sale and the commissioners shall deliver letters patent for the lands sold. If such certificate be lost or wrongfully withheld by any person from the owner thereof, the commissioners may receive evidence of such loss or wrongful detention, and issue a patent to the person who, on satisfactory proof, appears to them to be entitled thereto. If the purchaser die before a grant is issued, the commissioners may hear and determine the claims of all persons to letters patent. Whenever any person shall pay in full for any part of a lot sold by the state engineer, and such payment is certitied by the comptroller according to law, the comptroller shall indorse the portion of principal so paid upon the obligation executed by the purchaser for the whole lot, and letters patent for the part so pavil in full may be issued.

This section was derived from the Public Lands Law of 1994, § 35.
Cited.--This section was cited in Op. Atty.-Gen. (1902) 421.

L. 1909, cha 50

Unappropriated State Lands

$$ 36-38

§ 36. Collection, forfeiture and cancellation of purchasemoney bonds. The commissioners of the land office may direct the comptroller to sue upon any bond received by the state engineer on the sale of unappropriated state lands, if any payment stipulated in such bond shall remain due one year, or they may direct the state engineer to resell the land for the payment of which such bond was given, and in case of such sale, all previous payments made on account of such land shall be forfeited to the people of the state, and the bonds may be delivered up and canceled on the surrender of the certificates of sale.

This section was derived from the Public Lands Law of 1894, § 36.

Right of original purchaser to redeem.- It has been ruled that up to the time of the resale for default on the bond the purchaser at the original sale may pay the amount due on the bond, and thus redeem the land. Op. Atty.-Gen. (1899) 251.

Cited. This section was cited in Op. Atty.-Gen. (1910) 543; Op. Atty.Gen. (1898) 326.

§ 37. Resale of lands.

The state engineer, whenever he resells any such lot, shall include in the amount for which such lot is offered for sale, the sim unpaid at the time of such sale for principal and interest on the purchase-money's thereof, the amount due on the books in the comptroller's office for taxes and the interest and charges thereon, and the costs of such sale. If the total amount of such charges be not bied therefor, he shall purchase the same for the state at such umomt. If on any such sale, the state engineer becomes the purchaser in behalf of the state, the commissioners of the land office shall direct, whether the land purchased be offered for sale by liim at the price for which it was purchased, or a new ippraisement made thereof under his direction. Ile may sell such lots to any person applying to purchase the same, for the mount at which the same was purchased for the state, on the like terms and conditions as he is authorized to sell the mappropriated state lands. If the commissioners of the land often clirect il new appraisal of such lands, the state engineer may sell the same ils prescribed in this section for the prices at which the lots are respectively appraised.

This section was derived from the Public Lands Law of 1994, § 37.

Cited.-- This section was cited in Op. Itty-Gen. (190,5) 584; Op. Atty.Gen. (1898) 326.

$ 38. Payment on resale. The purchaser shall complete the sale, immediately; by paying into the treasury the amount due on the land and receiving a patent, or by executing it proper bond and receiving a new certificate of the sale.

This section was derived from the Public Lands Lill of 1894. S 38.

Cited. This section was cited in Op. 1111-Gen (1998) 326, in comection with the question as to the proper action that should be taken to collect the amount due the state on bonder lands.

$$ 39-41

Unappropriated State Lands

L. 1909, cha 50

$ 39. Removal of occupants of land resold. When a resale of land is directed, the commissioners of the land office shall cause notice to be given to every occupant of such land to remove therefrom, and if he does not comply with such notice, they shall direct the district attorney of the county in which such lands may be situated to commence proceedings for his removal before the county judge of such county. On proof, by the production of a certificate from the clerk of the commissioners of the land office, that a resale of such land has been duly ordered for default of payment, such judge shall issue his warrant to the sheriff of the county, commanding him, within ten days after the receipt thereof, to remove such occupant from such lands; and the sheriff shall remove such person within such time, and, for that purpose, shall possess the same powers as in the execution of criminal process. The sheriff shall retain such warrant in his hands, and if any person so removed shall return to occupy such lands without the consent of the state engineer, he shall be forthwith removed by the sheriff pursuant to such warrant. The sheriff, for executing a warrant under this section, shall be allowed such compensation, to be paid out of the treasury, as the comptroller shall certify to be reasonable.

This section was derived from the Public Lands Law of 1894, § 39. Validity of resale as dependent upon notice to occupants.-- The validity of a resale of public land upon default in payment is not dependent upon a compliance with the statutory provisions as to notice to occupants. Allen v. Lind Office ('om'rs, (1868) 38. X. 1. 312; ('andee v. Hiyward, (1865) 37 X. Y. 653, aflirming 34 Barb. 319; Op. Atty.-Gen. (1905) 581.

Cited.— This section was cited in Op. Atty.-Gen. (1898) 326, in connection with the question as to the proper action that should be taken to collect the amount due the state on bonded lands.

$ 40. Application for grant under special law. The commissioners of the land office shall not grant any of the unappropriated state lands to any person applying therefor by virtue of a special law, unless such application be made within one year after the passage of such law, unless otherwise provided therein, but such land shall be sold in the manner directed for the sale of unappropriated state lands.

This section was derived from the Public Lands Law of 1894, § 40.

§ 41. Right of action by holder of certificate.

Any person having the state engineer's certificate of sale max, on obtaining the consent of the commissioners of the land office, and on such terms as they prescribe, bring and maintain an action for any injury done to such lands after the date of such certificate. The assignee of such certificate may have the like remedy for any injury done after such assignment.

This section was derived from the Public Lands Law of 1894, § 41.

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