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$$ 57,58

Abandoned Canal Lands and Structures

L. 1909, cha 50

abutting on both sides of said parcel is in the same owner such parcel shall be sold subject to the perpetual right of such an owner to cross and recross such parcel so abandoned by means of a bridge, bridges or in such other way as the commissioners of the land office may determine. Such bridge, bridges or other ways of crossing shall be constructed and maintained by such abutting owner at his sole cost and expense.

New. Added by L. 1916, ch. 299, § 4.

$ 57. Place, notice and conduct of sale. Such public sale shall take place within the county where the lands or structures to be sold, or a part thereof, are situated. The commissioners of the land office shall fix a time when and place where such sale shall take place and shall publish a notice of such time and place of sale, which time shall not be less than thirty days after the last date of publication as hereinafter provided. Such notice shall contain a description of the lands or structures to be sold. Such publication shall be made at least twice a week for two successive weeks in the official state paper, and if such lands or structures proposed to be sold are situated wholly or in part in a city or incorporated village where a daily newspaper is published, such notice shall be published in any such newspaper at least twice a week for two successive weeks; but if there be no such newspaper published in such city or incorporated village, or if such lands or structures be not situated, wholly or in part, in any city or incorporated village, then such notice shall be published in a newspaper published in each county in which the lands or structures proposed to be sold, or any part thereof, are situated, at least once a week for two successive weeks. In addition to such publication such notice shall, within ten days of the date of the first publication, be served by mailing the same in a securely closed post-paid wrapper addressed to each person, firm or corporation who may have filed with the commissioners of the land office a request that any such notice of sale be served upon them.

New. Added by L. 1916, ch. 299, § 4.

$ 58. Release of state from obligation of maintenance. Each grant or conveyance made by the commissioners of the land office of such lands and structures abandoned for canal purposes shall contain a provision, as one of the conditions thereof, that the people of the state are released from all obligations for maintenance of any and all structures located in the conveyed section, and thereupon all liability on the part of the state for or on account of the maintenance thereof shall cease.

New. Added by L. 1916, ch. 299, § 4.

L. 1909, cl. 50

Abandoned Canal Lands and Structures

$$ 59, 59-a

$ 59. Disposition of proceeds. The proceeds from a sale or grant of such lands or structures shall be applied to the cost of the improvement which renders such lands or structures no longer necessary, and any surplus from the sale of abandoned lands and structures above the cost of the entire improvement shall be applied to the sinking fund for the payment of the improvement bonds.

New. Added by L. 1916, ch. 299, § 4.

$ 59-a. Records of canal board and of commissioners of land office. A record of all papers filed with, and of proceedings of the canal board or the comissioners of the land office, pursuant to this article, shall be kept by such board or commissioners respectively.

New. Added by L. 1916, ch. 299, § 4.

§ 60

Escheated Lands

L. 1909, chu 50

ARTICLE 5

ESCHEATED LANDS
Section 60. Persons entitled to petition for release.

61. Proceedings on receipt of petition.
62. Conveyance to petitioner.
63. Effect of deed on rights of others.
64. Protest; notice of hearing petition.
65. Disposition of moneys received; annual report.
66. Lands held under written contract.
67. Agents.
68. Escheated lands subject to trusts and incumbrances.
69. Certain patents ratified and confirmed.

$ 60. Persons entitled to petition for release. A petition for the release to the petitioner of any interest in real property escheated to the state by reason of the failure of heirs, or the incapacity, for any reason except infancy or mental incompetency, of any of the petitioner's alleged predecessors in interest to take such property, by devise or otherwise, or to convey the same, or by reason of the alienage of any person, who but for such alienage would have succeeded to such interest, may be presented to the commissioners of the land office within forty years after such escheat. Such petition may be presented :

1. By any person who would have succeeded to such interest but for his alienage or the alienage of another person, or

2. By the surviving husband, widow, stepfather, stepmother or adopted child of the person whose interest has so escheated, or

3. By the purchaser at a judicial sale or sheriff's sale on execution, or

4. By an heir, devisee, assignee, grantee, immediate or remote, or executor of any person, who but for his death, assignment or grant could present such petition, or the alleged grantee of any person or of any association or body, whether incorporated or not, who or which would have succeeded by devise or otherwise to the title of such person but for his alienage or a legal incapacity to take or convey the property so excheated.

Such petition shall be verified by each petitioner in the same manner as a pleading in a court of record may be verified, and shall allege:

1. The name and residence of each person owning any interest in such real property immediately prior to the escheat;

2. The name and residence of each petitioner and the circumstances which entitle him to present such petition ;

3. The name and place of residence of every person who would have succeeded to any such interest but for his alienage or the

L. 1909, chu 50

Escheated Lands

§ 60

alienage of another or any other rule of legal incapacity hereinabove mentioned affecting an attempted transfer of such interest to such person or to or by any of his alleged predecessors in interest;

4. The description and value, at the date of the verification of the petition, of such real property sought to be released;

5. The description and value, at the date of the verification of the petition, of all the property of every such owner, which shall have escheated to the people of the state by reason of failure of heirs or alienage and which shall not then have been released or conveyed by the state;

6. The name and residence of each person having or claiming an interest in such real property at the date of the verification of the petition and the nature and value of such interest;

7. Any special facts or circumstances by reason of which it is claimed that such interest should be released to the petitioner.

The petition may be filed within sixty days after its verification with the secretary of state, who shall present it to the commissioners of the land office at their next meeting thereafter, and who may call a meeting of the commissioners to consider the

same.

This section was derived from the Public Lands Law of 1894, § 60. It was amended to read as above by L. 1909, ch. 240, $$ 68, 69; L. 1909, ch. 509; L. 1911, ch. 399, and L. 1912, ch. 272. The amendment by L. 1909, ch. 210, § 68, affected subdivision 3, in the first part of the section, by inserting the words “ by the devise or otherwise to the title of such person,” in place of the words “to any such interest but for his alienage or the ” which formerly followed the words “ would have succeeded ” near the end of the subdivision. The amendment by L. 1909, ch. 509, also afl'ected subdivision 3 by inserting the words or the purchaser at a judicial sale or sheriff's sale on execution” next after the words could present such petition” near the beginning of the subdivision, and also added the words "his alienage or next preceding the words à legal incapacity” near the end of the subdivision. The amendment by L. 1909, (h. 210. $ 699, afl'ected subdivision 7 by substituting the concluding words " claimed that such interest should be released to the petitioner” in place of the words “ alienage of another or any other rule of legal incapacity herein." The amendment by L. 1911, ch. 399, affected the first sentence in the section and substituted the word “ sixty" in place of the former word · forty” at the end of the sentence. The amendment by L. 1912, ch. 272, changed the word sixty" substituted for the word “forty” by the amendment of L. 1911, ch. 399, to " forty” is it read originally. It also amended subdivision 3, in the first part of the section which, by the amendment thereto by L. 1909, chs. 210 and 509, read is follows: “ 3. By an heir, devisee, assignee, grantee or executor of any person, who but for his death, assignment or grant could present such petition, or the purchaser at a judicial sale or sheriff's sale on execution or the alleged grantee of any person or of any association or body, whether incorporated or not, who or which would have succeeded by devise or otherwise to the title of such person but for his alienage or a legal incapacity to take or convey the property so escheated.” The section was further amended by L. 1912, ch. 272, by the addition of subdivision 4. which re-enacted in part former subdivision 3, the text of which is given above.

Constitutional provision relating to escheated lands: see CONSTITUTION, art. 1, § 10.

Capacity to hold and transfer real property: see REAL PROPERTY LAW, $$ 10, 11.

Title through alien and liabilities of alien holders of real property: see REAL PROPERTY LAW', $$ 15, 16.

$8 61, 62

Escheated Lands

L. 1909, en. 50

Action to recover property escheated: see Code Civ. Pro., § 1977 et seq.

Ruies and regulations governing applications for conveyance of escheated lands. - See Op. Atty.-Gen. (1905) 605; Op. Atty.-Gen. (1901) 341.

Escheat act as one appropriating public property for private purposes.It was held in Englishbe v. Helmuth, (1850) 3 N. Y. 294, that the act of April 29, 1833, authorizing the commissioners of the land office to release lands escheated to the state, was not an act appropriating public moneys or property for private purposes, within the meaning of article 7, section 9, of the constitution of 1821, and did not require the assent of two-thirds of the members of the legislature in order to render it valid and effectual in respect to lands which escheated after its passage.

Supporting affidavits. It is not fatal to an application under the present statuto that there are aflidavits of only two disinterested persons instead of three required by the rules of the land office, corroborative of the essential facts alleged in the petition, where there is a third affidavit by a real estate dealer showing the value of the property sought to be released. Op. Atty.Gen. (1903) 555; Op. Atty.-Gen. (1902) 391.

Sale administrator as judicial sale.-A sale by an administrator on the uauthorized decree of the surrogate is not a judicial sale within the meaning of the present section. Op. Atty.-Gen. (1910) 977.

Applications approved.--Applications under the present section approved in Op. Atty.-Gen. (19909) 971; Op. Atty. Gen. (1909) 973; Op. Atty-lien. (1903) 527: Op. Atty.-Gen. (1903) 541, without construction of statute.

Cited. This section was cited in Op. Atty.-Gen. (1908) 570; Op. Atty. Gen. (1907) 628.

were

$ 61. Proceedings on receipt of petition. The commissioners of the land office shall determine the truth of the allegations of the petition; the value of the real property sought to be released ; and the value of all the property of every such owner which shall have escheated to the state, and shall not have been conveved or released by the state, and for that purpose the commissioners may take testimony and proof, either orally or by affidavits. They may, as a condition of hearing the matter, require the petitioners to produce witnesses or advance the expense of producing them.

This section was derived from the Public Lands Law of 1894, § 61.

Poiror to administer onths and to compel attendance of vritnesses: see Code ('iv. Pro., $$ $133, S52 et seq.

$ 62. Conveyance to petitioner. The commissioners may in their discretion, if they deem it just to all persons interested, execute, in the name of the state, a conveyance on such terms and conditions as the commissioners deem just, releasing to such petitioners the interest of the state so acquired in such real property so sought to be released.

I coulevanee so made to any such petitioner who is a parent, child, surviving husband or widow of any such owner of any interest therein immediately prior to the escheat, or the heirs-at-law of any such surviving husband or widow, or the alleged grantee of any person or of any association or body, whether incorporated or not, who or which would have succeeded by devise or otherwise to the title of such person but for a legal incapacity to take or convey the property so escheated shall be without consideration, if the value, at the date of the petition,

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