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$ 75-a

Grants of Lands under Water

L. 1909, cha 50

grant of lands under water is not entitled to a review by certiorari of their action. People v. Land Office Com’rs, (1892) 135 N. Y. 447, 32 N. E. 139.

Object of limitation to adjacent owners.- In limiting grants of lands under water to the proprietors of adjacent lands, it was the intention of the legislature to recognize and protect the riparian right of access to deep water, which exists independent of statute. Dooley v. Proctor, etc., Mfg. Co., (1912) 77 Misc. 398, 137 N. Y. S. 737. See also People v. Schermerhorn, (1855) 19 Barb. 540.

Extent of powers of commissioners.- The powers of the commissioners of the land office in respect to lands under water are purely statutory, and these powers are limited to grants under the present section to the owners of the adjacent uplands to railroad corporations under section 8 of the Railroad Law, and to pipe line corporations under section 48 of the Transportation Corporations Law. Op. Atty.-Gen. (1905) 595. See also Op. Atty.Gen. (1910) 984; Op. Atty.-Gen. (1897) 395.

Plenary power of state as to making grants. Although the commissioners of the land office are restricted, in grants made by them of lands under water in navigable rivers or lakes, to the proprietors of the adjacent lands, there is no such restraint upon the powers of the state, as exercised through the legislature. It is lawful for the state to make the grant to others than the adjacent proprietors. People v. ('anal Appraisers, (1865) 33 N. Y. 461; Op. Atty.-Gen. (1896) 311.

Tenure of grants.- It was held in Op. Atty.-Gen. (1899) 403, that lands under water should be held by the same tenure as the adjacent uplands.

Actual possession as necessary to adjacent ownership.-Actual possession of beach lands by inclosure or improvement is not necessary to give to the owner the water rights of an adjacent owner. Op. Atty.-Gen. (1898) 337.

Overflow by high tides as making “lands under water."— The fact that uplands are overflowed by extraordinary high tides does not make them “lands under water.” Op. Atty.-Gen. (1897) 352.

Effect of noncompliance with conditions of grant. — Failure to comply with the conditions of letters patent to lands under water granted for purposes of commerce voids the letters patent. Op. Atty.-Gen. (1896) 297.

Burden of proof.— I pon the hearing of remonstrances to the making of grants to lands under water, the burden of proof is upon the remonstrants to show that the grants should not be made, it being always presumed that the grants should be made until the contrary appears. Op. Atty.-Gen. (1895) 368.

Determination as to whether land is under water.- Whether or not land applied for is actually land under water is a matter of fact to be decided by the state engineer. Op. V.-Gen. (1895) 366.

Partial compliance with conditions of grant.- Grants of land under water upon condition that the premises granted are devoted to the purposes of commerce by the erection of docks thereon are not complied with by the erection of docks on a portion only of the premises granted, so far as the portion not thus improved is concerned. Op. Atty.-Gen. (1893) 302.

Wrongful erection of dock in front of applicant's upland.— It has been ruled that a dock wrongfully erected in front of an applicant's upland is to be treated as an accretion to the soil and should not be considered in the appraisal of the land under water. Op. Atty-Gen. (1895) 410.

Determination of rights of adjoining adjacent owners.- In determining who are adjacent owners, and how grants of land under water should be apportioned between adjoining adjacent owners, the same principles should be applied that govern the division between riparian proprietors of lands formed by alluvion. People v. Woodrur, (1898) 30.4 pp. Div. 43, 51 N. Y. S. 515, ailirmed (1899) 157 X 1.709, 53 N. E. 1129; Dooley 1. Proctor, etc., Mfg. (0., (1912) 77 Mise'. 398, 137 X. Y. S. 737.

Filling up land under water by adjacent owner.- An owner of adjoining uplands can acquire no title to the land under water belonging to the state by entering upon it without any right and tilling it up: and, as between him and the state, it still remains land under water.' Saunders v. New York Cent., etc., R. ('0., (1894). 144 1. 1. 75, 38 X. E. 992, 13 A. S. R. 729, 26 L. R. A. 378, modifying judgment il lun 153. 23 X. Y. S. 927. See also People v. Land Office ('om’rs, (1892) 135 X. Y. 417, 32 X. E. 139.

L. 1909, chu 50

Grants of Lands under Water

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It was

Lands under water created by erosion.— It was ruled in Op. Atty.-Gen. (1903) 552, that lands under water at Coney Island, created by erosion of the uplands, became lands in the ownership of the state regardless of the cause of the erosion, and that the proprietors of the adjacent lands were the only persons to whom a grant of such lands could be made. See in this connection Op. Atty.-Gen. (1897) 349.

Mortgage of upland as embracing land under water subsequently granted to mortgagor.- It has been held that a grant of land under water to the owner of adjacent upland who has previously mortgaged the upland does not subject the granted land to the lien of the mortgage. Mutual Life Ins. Co. v. Voorhis, (1893) 71 llun 117, 24 V. Y. S. 529.

Use of dock on lands granted.—A grant by the state “ · for the purpose of promoting the commerce of the state of lands under the water of a navigable river upon which the grantee, a riparian owner, has erected a dock, confers upon him no exclusive right to the use of the dock, but appropriates it to the use of all who are engaged in promoting the purpose of the grant, which is the commerce of the state, subject only to the owner's right to collect a reasonable sum for the use of the dock. Thousand Island Steamboat Co. v. Visger, (1904) 179 X. Y. 206, 71 X. E. 761, affirming 86 App. Div. 126, 83 N. Y. S. 3:25; Harper v. Williams, (1888) 110 X. Y. 260, 18 N. E. 77. See in this connection De Lancey v. Hawkins, (1897) 23 App. Div. 8, 49 N. Y. S. 469, affirmed (1900) 163 X. Y. 587, 57 V. E. 1108; Op. Atty.-Gen. (1898) 345; Op. Atty.-Gen. (1897) 351.

Patent to land under water as affected by subsequent legislation. held in Rumsey v. New York, etc., R. ('0., (1891) 130 N. Y. 88, 28 N. E. 763 (former appeal 114 N. S. 423, 21 X. E. 1056), that the provision of the General Railroad Act of 1890 (L. 1890, ch. 565), authorizing a railroad corporation to construct its road across or along any stream or watercourse, and removing the exception in the similar provision of the Act of 1850 (L. 1850, ch. 140) of the right to obstruct any navigable stream or lake, had no effect upon a patent for lands under the waters of a navigable stream issued by the state prior to the passage of the Art of 1890, and, therefore, did not divest the patentee of any rights acquired umder his patent.

Act of 1850 as requiring assent of two-thirds of members of both houses. It was held in Rumsey v. New York, etc., R. ('0., (1891) 1:30 N. Y. 88, 28 N. E. 763 (former appeal 114 N. Y. 4233, 21 V. E. 1066), that the Act of 1850 (L. 1850, ch. 283), the predecessor of the present statute, was one requiring the assent of two-thirds of the members or both houses of the legislature, as an act appropriating public property for private purposes.

Disposition of materials in bed of stream. - It was ruled in Op. Atty.-Gen. (1909) 478, that the provision in subdivision 5 of the present section, anthorizing the use of lands of the state under water for the purpose of improvement of navigation when the same is carried on by the federal or state gov. ernment, did not authorize the disposition of any materials found in the bed of navigable streams for any other purpose.

Cited. This section was cited in New York ('ent., etc., R. ('0. V. Mathews, (1911) 144 App. Div. 7:32, 129 N. Y. S. 828, in connection with the question of parties to condemnation proceedings. It was cited in Border Island ('0. v. Cowles Shipyard (v., (1914) 94 Misk. 340, in connection with the question as to the riparian rights of the owner of Strawberry Island in Niagara river. It was cited in People v. Page, (1999) 39 pp. Div. 110, 56 N. Y. S. 834, 58 N. Y. S. 239, in connection with the question as to the right of the owner of the adjacent upland to construct a dam across a navigable river. It was cited in People 1. John II. Ireland Realty('o., (1916) 96 Misc. 18, 160 N. Y. S. 988, in connection with the question of the constitutionality of chapter 331 of the Laws of 1872, which authorized the town survey commissioners of Kings county to determine and designate on the maps to be filed by them the bulkhead and pierhead lines which were to form the termination of the streets adopted and laid out by them along the water front on Gravesend and Jamaica bars. It was vited in Ledvard 1. Ten Eycki (1862, 36 Barb. 102, in comection with the question as to the right of action of an ad joining owner against a riparian proprietor along a non-navigable lake to restrain him from planting trees upon newly acquired tilled-in land, and thereby obstructing the plaintiff's view of the lake.

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Grants of Lands under Water

L. 1909, cha 50

II. WHEN GRANT SHOULD BE MADE Grant interfering with navigation.- Grants of land under water should not be made if they will interfere with the navigation of the stream. Op. Atty.-Gen. (1899) 397; Op. Atty.-Gen. (1897) 342; Op. Atty.-Gen. (1893) 387. See also Jenks v. Miller, (1897) 14 App. Div. 474, 43 X. Y. S. 927; Op. Atty.-Gen. (1898) 351; Op. Atty.-Gen. (1897) 346; Op. Atty.-Gen. (1896 ) 302; Op. Atty.-Gen. (1896) 338.

Grant of clamming and fishing grounds.-A grant of lands under water should not be made when the lands applied for are natural clamming and fishing grounds used continuously by the public and necessary to that industry. Op. Atty.-Gen. (1895) 401.

Granť to one tenant in common. The commissioners of the land office have no power to grant lands under water on the application of one tenant in common of the adjoining uplands, nor an undivided interest in the same. Ор. Atty.-Gen. (1894) 90.

Grant to bulkhead line to be subsequently established.--A grant should not be made of lands under water, extending out to a pier and bulkhead line to be swsequently established. Op. Atty.-Gen. (1894) 111.

Grant where applicant's sole purpose is to exclude public.— A grant of lands under water should not be made where the purpose sought to be attained by the applicant is not the improvement of the lands but the exclusion of the public therefrom. Op. Atty.-Gen. (1893) 158.

Grant as affecting rights of lessee of applicant for grant.-- The commis. sioners of the land office should not exercise their discretion in making a grant of land under water where the riparian owner would be enabled thereby to d) an act of injustice to his lessee. Op. Atty-Gen. (1902) 386.

Village as entitled to grant by reason of highway on shore.- A village is not entitled to a grant of land imder water by reason of its having laid out a highway on the shore: the right to a water grant belongs to the owner of the fee in the adjacent land. Op. Atty. Gen. (1898) 312.

Municipal ownership based upon colonial grant as bar to grant.-- It has been rule that a grant of land under water should not be devised by reason of alleged ownership by municipality based upon a colonial patent unless the question of ownership has been passed upon by the courts. Op. Atty.Cien. (1596) 295; Op. Atty.-Gen. (1996) 307. See also Op. Atty:-Gen. (1895) 368.

Grant by commissioners against protest of board of docks.- It was held in People v. Woodrufl', (1901) 166 V. 7. 453, 60 V. E. 28, atlirming 57 App: Div. 273, 6s Xi Y. S. 10, that under section S6 of the charter of the city of New York (L. 1897, Ch. 378), the commissioners of the land office had power to grant to a riparian owner land under water within the city limits, not withstanding the protest of the board of docks. See also in this connection People v. Woodruff, (1899) 39 App. Div. 123, 56 N. Y. S. 681, affirmed (1899) 159 X. 1. 536, 53 N. E. 1129; Op. Atty.-Gen. (1899) 404; Op. Atty.Gen. (1898) 318.

Owner of narrow strip of land as adjacent owner.- The owner of a strip of land lying along navigable water between high-Water mark and the property of another is the adjacent owner for the purpose of receiving a grant of land under water. People v. Colgate, (1876) 67 N. Y. 512; Op. Atty.-Gen. (1899) 391.

Powers of commission as affected by charter of New York city.— It was ruled in Op. Alty-tien. (1902) 367. that the power of the commissioners of the land office to grant lands under water embraced within the boundary lines of city streets which were not projected to the shore line because of the ownership of an intervening strip of land in a riparian owner, was not restricted by the provisions of sections 83 to 86 of the charter of Greater New York.

Grant of lands under waters of Jamaica bay.- It was ruled in Op. Atty.Gen. (1909) 969, that in making a grant of lands under the waters of Jamaica bay the grant should be limited to so much of the lands applied for as lay between the bulkhead line of 1875 and the mean high-water line, and should be in the usual restrictive form of grants within the limits of the city of New York.

L. 1909, cha 50

Grants of Lands under Water

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§ 76. Notice of application therefor. Every applicant for a grant of land under water shall, previous to his application, cause notice thereof to be published at least once a week for six weeks, successively, in a newspaper printed in the county in which the land so intended to be applied for is situated; and a copy of such notice to be posted for the same period upon the door of the court house of such county, and if there be no court house in the county, at such place as the commissioners direct.

This section was derived from the Public Lands Law of 1894, § 71.

Notice as essential to jurisdiction of commissioners.— The notice provided for in the present section is necessary to confer jurisdiction upon the commissioners, and without it any grant by them of land under water is void. People v. Schermerhorn, (1855) 19 Barb. 540; People v. Page, (1897) 39 App. Div. 115, 58 N. Y. S. 239, judgment modified 39 App. Div. 110, 56 NY. S. 834. See also People v. Jones, (1888) 19 Hun 365 mem., 2 N. Y. S. 148, judgment modified (1889) 112 N. Y. 597, 20 N. E. 577.

Modification of notice.- The form of the notice of application for a grant of land under water is a regulation of the commissioners of the land office and may be changed or modified in their discretion. Op. Atty.-Gen. (1902) 297; Op. Atty.-Gen. (1895) 109.

Patent as raising presumption of notice of application for grant.-A patent to lands under water is prima facie evidence of a valid grant without proof that the statutory notice of the application therefor was given. People v. Mauran, (1848) 5 Denio 389.

Cited.- This section was cited in Op. Atty-Gen. (1912) 76, in connection with a comparison of statutes requiring publication of notices. It was cited in People v. Saxton, (1897) 15 App. Div. 263, 41 X. 1. S. 211, affirmed (1897) 154 V. 1. 748, 49 X. E. 11022, in connection with the construction of section 10, relating to investigations before grant. See supra, $ 10 note. It was cited in Op. Atty-Gen. (1909) 255, 973; Op. Atty-Gen. (1907) 625; Op. Atty.-Gen. (1906) 671, in connection with the construction of section 11, relating to the confirmation of defective grants. See supra, § 11 note.

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[Failure to comply with conditions of grant; annul. ment.] Within sixty days after the passage of this act and on or before the tenth day of January in each year thereafter the secretary of state shall examine the records of all grants of land under water for which patents shall have been issued and which patents contain conditions to be complied with within tisod periods of time after the issue of such patents, and make a list of all such grants containing such conditions, the periods for the performance of which have expired, and vertity such list with the names of the patentees and the locations of the lands to the state engineer and surveyor. It shall thereupon be the duty of the state engineer and surveyor to cause an investigation to be made without delay for the purpose of seertaining whether or not compliance with the conditions contained in such grants shall have been hand, and he shall report thereon to the attorney-general. It shall be the duty of the attorney-general to begin actions against all such patentees or their successors in interest or assigns for the annulment of all patents the conditions of which shall be found not to have been complied with within the period fixed in such grants for compliance.

New. Added by L. 1917, ch. 308.

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Mines

L. 1909, chu 50

ARTICLE 7

MINES
Section 80. State mines.

81. Working of mines.
82. Private property in mines.
83. Notice of discovery; bounty to discoverer.
84. Permission for entry upon lands te work mines.
85. Entry by corporation to work mines.

$ 80. State mines. The following mines are the property of the people of this state in their right of sovereignty:

1. All mines of gold and silver discovered, or hereafter to be discovered, within this state.

2. All mines of other metals, and of talc, mica or graphite, discovered, or hereafter to be discovered, upon any lands owned by persons not being citizens of the United States.

3. All mines of other metals, and of talc, mica or graphite, discovered, or hereafter to be discovered, upon lands owned by a citizen of the United States, the ore of which, on an average, shall contain less than two equal third parts in value of copper, tin, iron and lead, or any of those metals.

4. All mines and all minerals and fossils discovered, or hereafter to be discovered, upon any lands belonging to the people of this state.

This section was derived from the Public Lands Law of 1894, § 80, as amended by L. 1902, ch. 503, § 1.

Reserration of gold amd silver mines in letters patent: see supra, § 5. Mines in Saint Laurence county: see REAL PROPERTY LAW, § 18.

Determination of mineral character or nonmineral character of public lands: see Ann. Cas. 1912A 1302 note.

§ 81. Working of mines. Any citizen of this state discovering a valuable mine or mineral upon lands belonging to the state and filing the notice of discovery required by this article, may work such mine; and he and his heirs or assigns shall have the sole benefit of all products therefrom, on the payment into the state treasury of a royalty of two per centun of the market value of all such products. Such valuation shall be made when such products shall first be in a marketable form. I statement of the amounts sold or removed from the premises covered by such notice of claim, and of the trees cut or destroyed upon such lands, shall be made semi-annually under oath to the secretary of state, and payments of such royalty shall be made semi-ammually to the state treasurer, under oath as to the amount thereof, on the basis of such semi-annual statement to the secretary of state. Any wilful falsehood in the contents of such statement to the secretary of

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