"The People of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of this State." (Const. of 1846, art. 1, § 11; 1 R.S., 718, § 1.) This declaration of the organic law, it seems to me, establishes incontrovertibly, the proposition that the title to all the lands in the State, is owned and held by, or has been derived, either immediately or remotely, from The People or their predecessor, the Crown of England. It is equivalent to the most conclusive evidence, that they, at some period in the past, were the absolute owners of all and every part of the lands of the State; and hence, that in an action by them to recover possession of any such part, all that is necessary to prove in the first instance, to sustain the action and put the defendant upon the defence, is, that the defendant was an actual occupant of the premises; or, in case there was no such occupant, that he was exercising acts of ownership thereon, or claimed title thereto, or some interest therein, at the time of the commencement of the action.
In an action by an individual, who should prove by competent evidence title in himself to the premises in question, at any time prior to the commencement of the action, and precisely *Page 59 such a possession in the defendant as was proved in this case, no one, I apprehend, would dispute the plaintiff's right to recover. The defendant, under such a state of the evidence, would be put upon his defence; and unless he should be able to show a better title or establish a good adverse possession, or interpose some other legal impediment to the plaintiff's recovery, he must inevitably be defeated in the action. In a case where the People are plaintiffs in the action, the only difference is, that the plaintiffs are relieved from proving title in themselves in the first instance, for the reason that by their right of sovereignty they are deemed to possess the title. It is a legal necessity that there must be some original source or fountain of title to all the lands within the State. That source is properly declared to be the People of the State in their collective and sovereign capacity. Such being the case, it would be absurd to require them to give any evidence of their title, until it should be shown that they had at some time parted with it, or that there was some other legal bar to the action (The People v. Arnold, 4 Comst., 508.)
The present action was commenced in December, 1856, and was tried at the Circuit in the city of New York in February, 1859. Upon the trial, the plaintiff gave evidence tending to prove that, at the time of the commencement of the action, the defendants, Beames and Tinken, were in possession of some portions of the premises in question, and that they continued so in possession for about a year and a half as tenants of the defendant, Hallock, they paying rent to him. There is an entire absence of evidence of possession in any one prior to theirs, except what may be inferred, or rather conjectured, from the fact that, when the witness first saw the premises within a month before the commencement of the action, there was a house upon them, but it did not appear when it was built, how long it had been there, whether it was old or new, nor whether it had ever had a previous occupant. There was nothing else tending to show any right or title in the defendants, or either of them, to any part of the premises. Under this state of the evidence, the presumption does not arise that the defendants, or either of *Page 60 them, had the title, nor that their possession had been of any greater duration than the evidence showed it to have been. Unless such presumption did arise, the plaintiffs were prima facie entitled to recover.
It is claimed on the part of the defendants that the State can only rest on a presumption of right, without affirmative evidence of title, in an action of ejectment, when the land is vacant; and that to enable the State to avail itself of that presumption, it must be proved that the premises were vacant and unoccupied within the period necessary to be shown to establish an adverse possession against the State; that is to say, within forty years next before the commencement of the action.
It seems to me, that to sustain these positions, would be to reverse a well settled rule of presumption. It amounts to this: the State comes with her acknowledged right of eminent domain, and asserts her original and ultimate title to the land. That title is paramount to all others. It is beyond dispute. It is not a mere presumption, but an absolute intrinsic verity, unquestioned and unquestionable. The individual in possession says that the State has parted with her title; and without the slightest evidence of any act of transfer by the People, invokes the rule claimed by the defendants in this case; in other words, he asks the court to presume, from the fact that he is found in possession when the action is commenced, that he and those under whom he claims have been in possession for the period of forty years.
In an action by an individual against a person in possession claiming title, an entirely different rule prevails. If, as before remarked, the plaintiff in such cases proves upon the trial that he was, at any time prior to the commencement of the action, the owner of the land, the defendant is required to justify his possession by evidence sufficient to overthrow the plaintiff's title. One of the ways in which he may do this, is by proving an adverse possession for twenty years. Whatever his defence may be, the onus probandi is upon him. If he relies upon the defence of adverse possession, he must prove it, and no presumption *Page 61 will aid him, which arises from the fact of his being in possession at the commencement of the action, or for any length of time short of twenty years next anterior to that event. These are propositions too familiar and plain to require the citation of authorities to prove.
I confess myself entirely at a loss to perceive any reason why the rule of presumption should not apply as well to the case where the action is brought by an individual as where the People are plaintiffs. The idea of a distinction between the case of vacant premises and of those occupied, as affecting the rule of presumption where the People are plaintiffs, made its first appearance, for the first time, so far as I can discover, in the case of Wendell v. The People (8 Wend. R., 183, in the Court of Errors). In the report of that case in the Supreme Court (5 Wend. R., 142), nothing appears either in the statement of the case, the arguments of counsel or the opinion of the court, going to show that the premises were vacant; but, on the contrary, it does appear that the defendant was in possession of the premises in question, which it was alleged had never been granted by the State to any one: that to show that the premises had been granted and the title of the State divested, the defendant produced certain letters patent of two certain tracts of land granted to one Thurman, and the whole question was, whether the premises were embraced in the lands described in the letters patent. In the report of the case in the Court for the Correction of Errors, in 8th Wendell, it appears by the statement of the case, that "the proof of title on the part of the plaintiffs was, that thirty years before the trial, the premises were vacant and unoccupied lands; that two years afterwards, one Ruel went into the possession of the land under a pretended contract, and made a clearing, to whose possession the defendant succeeded. The questions discussed in the case in the Court of Errors, were entirely aside from the one whether the plaintiff in the first instance was bound to show that the premises were at any time vacant within the forty years. No allusion is made in the argument to that question. The Chancellor, who delivered the opinion of the *Page 62 court, says: "The People of this State, upon the declaration of independence, succeeded to all the rights of the Crown, and they are the owners of all the lands within the limits of the State, except such as have been granted to others, or where their title has been lost by adverse possession. Where lands have never been granted by them, they are presumed to be the owners, until the contrary appears; and in such cases, they can give no other evidence of their title than that produced on the trial." The Chancellor then refers to the possession of Ruel and the defendant, and adds: "This was presumptive evidence of right in the People of this State at the time Ruel, under whom the defendant claimed, went into possession." The residue of the opinion is devoted to the question whether the premises were embraced in the patent. This is certainly not an adjudication upon the question whether the People were bound to show, in the first instance, that the premises had been vacant within forty years, or that they had been in the receipt of the rents and profits within that time. The fact that the premises had been vacant was in the case, and the court meant no more than that the facts as proved were evidence sufficient to put the defendant on his defence. It does not follow, nor is it stated, that it was necessary for the plaintiff to prove the premises vacant at any time.
In the case of The People v. Denison (17 Wend., 312), NELSON, Ch. J., after asserting the right of eminent domain in the People, adds: "And in an action of ejectment in their name, proof that the premises claimed were vacant and unoccupied within the period necessary to be shown to establish title by adverse possession against them, is sufficient in the first instance to authorize a recovery," and cites Wendell v. The People (8 Wend., supra). He then adds: "This proposition necessarily follows from the fact of their being the source of title, as there can be no deduction of it shown, and in ordinary cases, no actual possession."
In the case of The People v. Van Rensselaer (5 Seld., 291), two opinions were delivered, one by Judge WILLARD, and the other by Judge DENIO. That by the former, contains, at *Page 63 page 319, the following passage: "With respect to making out proof of title in themselves, the People have an advantage over an individual. By right of sovereignty they are deemed the owners of all the lands within the State, except such as have been granted to others, or have been lost by lapse of time. Hence it is enough for the People to prove, in the first instance, that the premises in dispute were vacant and unoccupied within a period necessary to constitute an adverse possession against them, and that the defendant subsequently entered or made claim to them." For this the learned judge cites Wendell v. ThePeople (8 Wend., 183); The People v. Denison (17 id. 312; 1 R.S., 718, § 1), and Constitution (art. 1, § 11); all of which are hereinbefore referred to. Judge DENIO, in his opinion, takes no notice of the question whether it is necessary for the People, in the first place, to show the premises vacant at any time, in order to make out their action on the strength of the presumption of title in their favor. The authorities cited by Judge WILLARD fully sustain the title of the People, unless they have parted with it or have lost it by adverse possession. Upon the question of adverse possession by the defendant for forty years, arising from the fact that he was proved to be in possession at the commencement of the action, they are the merest dicta, and entirely unnecessary to the decision of the cases. In the case ofWendell v. The People (8 Wend., supra), it happened that the statement of the case contained the fact that the premises had been vacant at a time within forty years. The Chancellor does not say the People were bound to prove that fact in the first instance, or that nothing short of that would suffice. After stating that the People were owners of all the lands in the State which they had not granted to others, c., and that where lands have never been granted by them, they are presumed to be the owners until the contrary appears, c., — he added the statement that the premises in question in that case were proved to have been vacant at a time thirty years previous to the trial, c., and then remarked: "This was presumptive evidence of the right of the People of this State at the time Ruel, under whom the defendant claimed, went into possession: *Page 64 as that possession had been held adversely to the rights of the People, sixteen years short of the period then limited for the bringing of actions by them, it became necessary for the defendant to show title out of the State, to rebut that presumption." Nor is it said in any of the cases which followed the one last referred to, that in order to recover the possession, the People were bound to prove the premises vacant at any time, — until we come to The People v. Van Rensselaer, in 5th Selden, supra. In that case we find the following passage in the opinion of Judge WILLARD: "At the time the counsel for the People rested the cause in this case, there was no sufficient evidence before the court to entitle the plaintiffs to recover, or to require the defendants to be put upon their defence. First, there was no proof that the premises had been ever vacant and unoccupied, or that they were, prima facie, without the bounds of any patent; and secondly, there was no evidence that the defendants were in possession, or that they claimed title. Although the defendants' possession was asserted in the complaint and admitted in the answer, yet it was denied in the reply. The People are bound by the allegations in their pleadings, like individuals. Notwithstanding the reply was a clear departure from the complaint and, as such, obnoxious to a demurrer, it is still binding upon the plaintiffs. The pleadings and the whole case show, that at the time the plaintiffs rested, they sought, without any evidence of title in themselves, to recover judgment against parties who, their reply asserts, never possessed the lands described in the complaint, and were never entitled to that possession. The judge erred, therefore, in putting the defendants upon their defence." His honor, however, in view of the fact that the cause was subsequently tried upon its merits, and had been fully and ably argued, concluded that it would be more satisfactory to the parties, that the court should pass upon one or more of the questions which would be decisive of the action, not only in that, but in any future litigation upon the same subject. He then proceeds to examine the case upon its merits and shows very clearly that the patents under which the defendants and those under *Page 65 whom they claimed, held the lands in question, the validity of which was controverted by the plaintiffs, were valid and effectual to bar any recovery by the People; and if otherwise, that the defendants had shown a perfect adverse possession for more than forty years. The learned judge was of the opinion that the plaintiffs should have been nonsuited upon two grounds: 1. That there was no evidence that the premises had ever been vacant, or that they were without the bounds of any patent; and, 2. That there was no evidence that the defendants were in possession, c., at the commencement of the action. If the second ground was true in point of fact, it would clearly have been a sufficient reason for nonsuiting the plaintiff. With respect to so much of the first as states there was no evidence that the premises were without the bounds of any patent, it seems to me, with all deference, that it was manifestly incumbent on the defendants, and would be more in accordance with the proper order of proof and the rules of evidence, for them to prove that the premises were within the bounds of some patent, than to call on the plaintiffs to prove that they were without such bounds. The remaining part of the first ground, involves the precise question now under consideration in the present case. No question appears to have been raised, at the trial, of the plaintiffs' primafacie right to recover before the defendants introduced their evidence; and none was raised by counsel either in the Supreme Court or the Court of Appeals. The defendants relied upon two distinct defences: 1. That the People had parted with their title, and, 2. Their adverse possession for more than forty years; — upon both of which the defendants gave affirmative evidence, and both of which were established.
What the judge means in his concluding remarks upon the question of the plaintiffs' prima facie right to recover — that when they rested, "they sought, without any evidence of title inthemselves, to recover against parties," c., — I confess I am at a loss to understand. He had just before fully recognized the rule that the People are deemed the owners of all the lands in *Page 66 the State, except such as have been granted to others, or have been lost by lapse of time.
I have referred to this case thus extensively, and dealt with it thus freely, for the reason that in the opinion of Judge WILLARD, the only assertion is to be found, as far as I have been able to discover, of the necessity on the part of the People to prove a vacant possession in order to maintain the action; as well as for the reason that it seems to have been very much relied upon by the counsel for the defendants. The fallacy, as I think it is, was allowed incautiously by Chancellor WALWORTH to find its way unnecessarily into his opinion in the case ofWendell v. The People, and has been adopted as sound law and relied upon by judges in the subsequent cases referred to on the subject, and in all of which cases its adoption was unnecessary to the decisions made. The question is presented in this case I believe for the first time, whether the fact, that the defendant is found in possession at the commencement of the action, authorizes the presumption that his possession and that of those under whom he claims, has been continuous for the period of forty years. In the case of The People v. Arnold (4 Comst., 508, 513), this court held, that to constitute a bar to the right of entry of the People, there must be such a holding, for forty years, as would constitute a good adverse possession, if the land had been owned by an individual instead of the State.
Upon the whole it seems to me very clear, that in an action by the People to recover the possession of land, all that is necessary for the plaintiffs to show in the first instance is, that the defendant was in possession of the premises claimed at the commencement of the action. That to require them to prove the premises vacant at any time, in order to put the defendant to his defence, would be violating law as well as logic; and would overturn and subvert the doctrine of presumptions in similar cases, as established by a long and unbroken course of judicial decision, and would introduce an unwarrantable distinction in the application of the rule between cases where the *Page 67 People and those where individuals were plaintiffs. The defence of the statute bar, in question, is an affirmative one, and should be proved like any other affirmative defence.
Judgment affirmed.