The People of the State of New York have brought this action to obtain a judgment declaring letters patent granted to George Brooks on October 18, 1854, null and void; that the letters patent granted to John Good, dated February 9, 1887, be declared null and void; and that the defendants be barred from any title or interest in the lands under water granted by said patents. No answer has been served. On the affidavit of August Kiel, president of the defendant Tompkins-Kiel Marble Company, a motion was made to dismiss the amended complaint on the ground (a) that it does not state facts sufficient to constitute a cause of action; (b) that the alleged cause of action did not accrue within the time limited by law for the commencement of an action thereon. The State submitted the affidavit of the Deputy Assistant Attorney-General setting forth the recorded facts which in turn called for the reply affidavit from Raymond T. Heilpern, attorney for the moving party. The Special Term granted the motion and, from the unanimous affirmance of the dismissal by the Appellate Division, an appeal has been taken to this court by its leave. The amended complaint contained two causes of action, but it is the first cause of action which has thus been summarily disposed of and with which we are to deal. The major facts are not disputed.
The People of the State of New York, on October 18, 1854, granted to George Brooks power and authority *Page 85 to erect docks necessary to promote the commerce of the State upon the land under water adjacent to Long Island, in the town of Newtown, county of Queens, and did also "give and grant unto the said George Brooks his heirs and assigns, the land under water, and between high and low water mark, described as follows: * * * And these presents are upon the express condition that if the said George Brooks his assigns shall not within five years from the date hereof actually appropriate and apply the above described premises to the purposes of Commerce, by erecting a Dock or Docks thereon and filling in the same, then these presents and everything herein contained shall cease, determine and become void."
This grant to Brooks could not be attacked collaterally and no one could enforce the express condition subsequent except the State of New York. As against everybody except the State of New York George Brooks and his assigns held the land under water granted by this patent in fee. (Matter of City of New York [Upper N.Y. Bay], 246 N.Y. 1; New York Foundation v.People, 259 N.Y. 54.) This action against Brooks' successor in title was not commenced until February 8th of 1932, over seventy-two years after the five-year period to erect docks had expired. This was too late. By section 31 of the Civil Practice Act, the People of the State will not sue a person with respect to real property by reason of the title of the People to the same unless the cause of action accrued within forty years before the action is commenced. The allegation of the amended complaint is that a dock was not built within five years, as stated in the express condition.
The facts, however, carry this case somewhat further. Among the mesne conveyances of the upland adjoining the grant of land under water is one to John Good, dated April 10, 1886. By this conveyance John Good took the upland owned by Brooks and, although the conveyance did not say so, it carried with it title to the *Page 86 land under water, pursuant to our decision in Archibald v.N.Y.C. H.R.R.R. Co. (157 N.Y. 574). If Brooks had title to land under water by reason of his patent, Good also received it when he obtained ownership of the upland, as the upland and the land under water in front thereof cannot be in two distinct persons when the patent has been obtained for commercial purposes in conjunction with the upland. For some reason not explained this John Good on November 1, 1886, made application to the State of New York for a grant of land under water covering a portion of the land under water theretofore granted by the State to George Brooks. In his application John Good said: "I will, on the eleventh day of September, 1886, apply to the Commissioners of the Land Office of the State of New York, at Albany, to grant to me, in perpetuity, so much of the lands under the water of the East river or Sound and land between high and low water mark, and extending to the permanent exterior water line established by law adjacent to the land hereinafter described, of which I am the proprietor and owner and actual occupant, as said Commissioners shall deem proper for the purpose of the beneficial enjoyment of same by me."
The application was granted on February 9, 1887, and covered the entire width of the original Brooks grant, but extended out about half the distance of the Brooks grant from the shore — so it is stated in the affidavits without contradiction, and so it appears from the maps annexed as exhibits. In other words, the Good grant overlapped about half of the Brooks grant. What was the effect of this subsequent grant? As Good, being owner of the upland, was also the owner of any rights in the land under water which Brooks possessed, it was unnecessary for him to make this application for another grant if he knew the facts and understood the circumstances. Title was in him and he could only be divested *Page 87 of it by action of the State brought within forty years from 1859.
The State in its brief has reasoned, and perhaps with some force, that Brooks had abandoned his grant — whatever this may mean — or that possibly some question had arisen about Brooks' title to land under water under his patent when he had not complied with the conditions. It may be that in 1886 the law of land patents was not as clearly understood as now. In ThousandIsland Steamboat Co. v. Visger (179 N.Y. 206, at p. 213) we have a case where the grantee of a patent was seeking rights or privileges under a subsequent grant. This court said: "Crossmon appears not to have made improvements, within the time specified in the grant of 1883, and, therefore, applied for the subsequent grant; but as the State authorities had not taken action to vacate the prior grant, it was binding upon the grantee. If the State had not resumed its title by annulment of its grant, the title remained in Crossmon, subject to the terms imposed." (Citing the Archibald case, above referred to.)
The general rule appears to be stated in Townsend v.Trustees of Brookhaven (97 App. Div. 316, 330). "The grant [subsequent grant], so far as it overlapped the Smithtown grant, if it did, was void, under the rule that the king cannot grant the same thing in possession to one which he or his progenitors have granted to another." This rule of course would not apply to a subsequent grant which was in the nature of a deed of correction, placing limits to the grant which previously had been omitted. Such was Town of Babylon v. Darling (207 N.Y. 651). The Appellate Division of the Second Department, in People v.Foote (242 App. Div. 162, 168), have noted the Town ofBabylon case as an authority for this statement of the law: "When a patentee applies for a confirmatory patent, his title thereafter depends wholly upon the terms of the confirmatory patent, even *Page 88 though his confirmatory grant is less in extent than that which he formerly claimed to possess under a prior grant." This statement may be accurate if it is confined to a confirmatory patent, one which makes certain that which before was uncertain, but if it goes further than this I do not find it supported by the authorities. There is nothing in this record to show that Good applied for a confirmatory patent. Just as likely as not there was a misunderstanding in 1886 regarding the law and Good applied for a grant of land under water, not realizing that he had it all the time.
As before stated, Brooks in 1854 acquired his grant of land under water covering all and more than Good got in 1887. Although Brooks in his conveyance and the subsequent mesne conveyances into Good did not refer to this grant of land under water, it passed with the title to the upland. To again refer to theArchibald Case (157 N.Y. at p. 579), it is there stated: "Moreover, when land under water has been conveyed by the state to the owner of the adjacent uplands, the lands under water so conveyed become appurtenant to the uplands, and will pass by a conveyance of the latter without specific description." As the State took no action up to 1887, and the Brooks grant had passed to Good, there was no necessity or occasion for this new or additional grant, or his application therefor so far as appears of record.
The State goes much further, however, and asks that the grant to Good in 1887 be declared null and void for failure to comply with the conditions therein contained. Good was to build docks within five years, which would bring the period up to February 9, 1892. Forty years from that time would be February 9, 1932, and this action seems to have been brought on February 8, 1932, or one day before the expiration of the forty-year Statute of Limitations. As to Good, there may be a question of fact which should be tried out. The *Page 89 State says the grant and conditions have not been complied with. In a reply affidavit of Mr. Heilpern he denies this charge and says: "That the lands affected by the grant have been filled in; that a dock has been erected thereon, and that the lands are being used for the purpose of commerce, as such purpose has been defined by the Court of Appeals."
I have reviewed the facts as they appear in affidavits on this motion for dismissal of the complaint on the allegations contained therein. One of the allegations is contained in paragraph 12 as follows: "That the grantee named in said grant [meaning Brooks] completely abandoned said grant and all his right, title and interest in the lands under water described in said grant."
In view of the fact that none of the deeds conveying the upland mentioned this Brooks grant of land under water or any rights therein; and the fact that some reason not stated moved Good to apply for another grant, we think that this allegation of the complaint should not be taken as a mere conclusion of law but rather as a statement of fact. A complaint is not to state evidence, and it may be that the State upon a trial will have additional facts or circumstances bearing upon the failure of Brooks to improve the land under water for commerce, and the reason why Good applied for a new grant.
In other words, these matters affecting State rights and the title of the People to the land under water should not be summarily disposed of upon motion. Rather, there should be an opportunity afforded for a full hearing. We have referred to the cases wherein the effect of a subsequent grant was in question, but we do not at this time intend to express our opinion upon the effect of this subsequent grant to Good. We prefer to have all the facts as they may appear after a trial. In view, therefore, of the allegations of this complaint, the statements made in the affidavits and the situation as presented in *Page 90 the record of the title, we are of the opinion that the motion should not have been granted dismissing the complaint, and that the defendants should be compelled to answer, presenting such issues as they have.
O'BRIEN, CROUCH and FINCH, JJ., concur with LEHMAN, J.; CRANE, Ch. J., concurs in result only in opinion in which HUBBS and LOUGHRAN, JJ., concur.
Orders reversed etc.