1. The first and principal question whether the lands, of which partition is sought by the bill, be individual, property, belonging either to the heir of the surviving patentee, or to those who derive title from the patentees and their specified associates, or whether it be common property of the town of Hempstead, and subject to . its exclusive disposal.
To determine this question, we must recur to the original grants, and to the construction which they have received.
The town of Hempstead was settled in 1644, under a patent from William, Kieft, the then governor of the Dutch province. That patent granted the tract of land forming the town, to six persons, by name, with their associates, their heirs and successors, to build a town, and fortifications, and a ^ouse of worship, and to erect a body politic or civil combination among themselves, and to nominate magistrates, who were to hold Courts, civil and criminal, and with the consent of their associates or free inhabitants, to establish ordinances, &c.
I should conclude that such a grant as this, proceeding from the English government, would have given a qualified corporate capacity to the inhabitants of Hempstead, sufficient to enable them to take, manage and dispose of the land, as a civil community or body corporate, And under the civil law, which is the common law of the Dutch, corporations, with all the usual attributes, were well known and in familiar use, and created with less ceremony and difficulty than even with us..
[ * 325 ]
The grant was to the association and their successors, as well as heirs, for public purposes of a municipal nature. The professed objects of the grant were consistent with the design of bodies politic. There is no particular *form of words requisite to create a corporation. A grant of a rent to a chaplain and his successors, and a grant to a body of men to hold mercantile meetings, (Gildam mercatoriam,) has been held to confer a corporate capacity. (10 Co. 27, 28. 30.) There are many instances of grants to the inhabitants of a town, that they should be a free borough, and enjoy various privileges which have been considered as making them a corporate body. (1 Kid on Corp. 52. 62, 63.) )
So persons may have corporate powers, sub modo, and, for certain specified purposes only. Our laws afford numerous examples of this' kind. The loan officers of a county, and the supervisors of a county, are corporate bodies ; and if was *325observed by the Supreme Court, in Jackson v. Hartwell, (8 Johns. Jlep. 422.) “ that there were many instances in the law of collective bodies of men, coming under one general description, endowed with a corporate capacity in some particulars expressed, but who have, in no other respect, the capacities incident to a corporation.”
The several ‘°)™s ar‘" lelg“j communities, or foTcertain°pi!r-' poses,The several towns in this state may be considered as legal communities, or bodies politic, for certain purposes. They are authorized, at their town meetings, to make rules and regulations for the better improving of “ their common lands in tillage, pasturage, or any other reasonable way,” and for making and maintaining pounds, and for imposing penalties, and to raise money for prosecuting or defending the common rights of the town; and all such rules or by-laws are to be recorded by the town clerk. The common lands of the town must mean such as belong to the town, in its aggregate or corporate capacity, for the town could have no right to interfere with the tillage or improvement of private individual property.
[ * 326 ]
There was nothing, therefore, unusual in this Hutch grant, when it conferred on the “ free inhabitants” of Hemp-stead, in their collective capacity, the lands contained *in the grant. The associates of the six patentees named, meant the free inhabitants at large. .
The inhabitants of Hempstead held their lands under the authority of this grant, until they obtained a new patent from Governor Dongan, in 1685. This last patent was procured by the agents of the town, appointed at regular town meetings, and for the use of the town. This appears from the proceedings of town meetings held in October and December, 1668, and April, 1685.. And at a town meeting in December, 1684, it was voted, that every person in it, possessed of any land, whether by proprietary, by purchase, or by gift, should have a right in all the commons in the township, proportionable to the lands they possessed, provided the whole town joined to procure a general patent for the whole township.
It appears that, in the interval between the two patents, ' lands had been granted, from time to time, to individuals, by gift, lease, or purchase, but always by the town itself, in its regular town meetings. The records are full of these grants to individuals; and the town, in its corporate capacity, exercised, as owner, a complete and uninterrupted power over the lands in the patent. Then came the patent of Dongan, which is the foundation of their present title. It refers to the grant of the' lands of the township by the former-Dutch patent, and grants, ratifies, and confirms, unto six patentees named, for and on behalf of themselves and their *326associates, the freeholders and inhabitants of the said town, their heirs, successors, and assigns, the tract of land aforesaid, with all the privileges and immunities belonging to a town.
The English patent, in 1685, to Hempstead, is a confirmation of the former Dutch patent, and was intended for the same corporate purposes. And the freeholders and inhabitants, in their town meetings, acted in their collective capacity, in regard to their common lands, as well as in the choice of town officers, &c.[ * 327 ]
I am persuaded that this patent intended to follow the other in conferring title, and did not mean to place the lands in different hands, and under a different control and succession. It professed to be a ratification and confirmation of the former grant in that particular. It defines the associates to be “ the freeholders and inhabitants of the *said town.” It uses, like the other, the word successors, which is a well-known technical term applied to corporate succession, and it couples with the grant of the lands all the privileges and immunities belonging to a town. Both parties had the same object in view, the town who applied, and the government who granted.
[ * 328 ]
From the date of this patent down to the division of the town, and even to this day, the control and disposition of the lands in the patent were exercised by the town, exclusively, in its regular town meetings. The uniform character of the property undisposed of by the town, was that of town commons, and not individual property. It was always governed, considered, and disposed of, as town property. The town meetings exercised, in this respect, a steady, exclusive, and unquestioned jurisdiction. The grants to individuals, even to the patentees named, as the grant, for instance, of the 23d of January, 1704, to John Jackson, were town meeting grants ; and these meetings were the ordinary regular town meetings for the civil concerns of the town and the election of its officers. The title and language of the meeting were the same, whether its business was the election of a supervisor .or the management of their common lands. There is no color or pretence, as the evidence strikes me, for the suggestion that the meetings acted in one character when town officers were elected, and in another character when a vote was taken touching this property. There is no' such distinction to be discovered. The books of entries were all town books, and the orders were entered as town orders, by the town clerk ; and we should do great injustice to the candor and simplicity of that people, if we were to suppose that any such latent distinction was understood or intended. I will not stay to examine any minute or unessential variation that might, perhaps, now and then, be detected in the plain untechnical journals of this town, for the space of a century and a half. It is more fit that we should determine *the character of their proceedings -from the uniform tenor and combined view of the whole.
To cite the instances in which the town, in its collective capacity, regulated and disposed of the unappropriated lands *328under the patent, would be to transcribe the town records at large, from the date of the patent to the division of the town, (a) There does not appear ever to have been a question, in all their town meeting discussions, and votes, and protests, as to the right of the town to regulate, divide, and dispose of their common lands. The patentees and others would sometimes question the fitness, but never the authority of any resolution. This could not have been thought of, since every man in the town, who possessed lands separately, held them under that same authority. The uniform and universal understanding was, (so I construe the evidence,) that the undivided lands belonged to the town, and were subject to its exclusive regulation and disposal at town meetings. This was also the uniform practice; and, indeed, town meetings are the only legal organs through which the freeholders and inhabitants can declare their united w.ill.
John Jackson, vivhg^Ltcntee nameS in the Coufd5notfeby[ * 329 ]
*There were several acts of the colonial legislature, which assumed the fact as notorious and undisputed, that the common lands were the common property of the town. This was particularly the case with the acts of the 17th of June, 1726, and the first of November, 1733 ; and the last act is stated to have been granted upon the prayer “ of the freeholders and inhabitants of the said township.”
I shall not undertake to detail the parol proof. It is quite inferior to the force of the documentary evidence, since it cannot reach beyond the memory of the present generation. But even this proof is decidedly in favor of the conclusion to be drawn from the language of the records of the town.
*329[ * 330 ]
*328But there is one document, which may be thought to hold a different language. I allude to the deed of John Jaclcson, of the 17th April, 1722. He was the survivor of .the six persons, whose names were mentioned in the patent from *329Governor Dongan. This deed seems to have been intended by him as a declaration of trust, on the ground, probably, that the fee at law was in him, instead of being in the freeholders and inhabitants of the town. It declares who were the associates intended in the patent; and he makes them to be those who entered their lands at the time of the assess-in 1685, of per acre, to defray the expenses of procuring the patent. But this act of his, and which was probably done for greater caution, could neither enlarge nor abridge the right of the town to its common property. It could not change the associates defined in the patent itself; nor do I perceive what material operation it can have in this case, except that it destroys the notion of private individual right, and admits that he was a trustee “ in the behalf of the town,” and that his object was “ to settle the said town in. peace,” and that there might be “a right understanding amongst the associates, freeholders, and inhabitants of the same.” *This deed only comes in aid and furtherance of, and is not in opposition to, the title of the town.
r7th°ed°Apri 1722, rights”^6 the town to its com!mderPthePepScnt; nor could natT^thelmfdates of the patentees.This deed attempted to do one thing which Jackson had not the power to do. It undertook to limit the associates from being, as they were declared to be by the patent, the freeholders and inhabitants at large, to'be1 those only who contributed to the expense of obtaining the patent. And as this point forms one ground of the present suit, it will require some further examination.
2. It is contended, that those who contributed to that expense, and their heirs and assignees, are entitled, under some ancient vote or resolution of the town,. to the undivided property, and to the aid of this Court, in compelling a division of the common lands upon that basis. This position seems to admit the title in the town, and that it is bound, in consideration of the contribution, to carry its resolution into effect.
*330[ * 331 ]
*329The patent charge was paid, in the first instance,' by .an assessment upon the inhabitants, of 2Jd. an acre, according to the quantity of lands they then individually possessed. As early as 1686, the assessment had been made and partly levied, and a warrant issued for the remainder. The persons assessed were, probably, all the inhabitants who had any possessions, or were regarded as having any interest in the town ; and the rate of assessment was naturally adopted as a fit rule of distribution, whenever the town came to consider the question of a division of their- common lands. Thus it appears, that in April, 1687, there was a list of the names of the inhabitants, to the number of 160, who had made entries with the town clerk, of the amount of acres they possessed, and which were assessed at the rate afore*330said, towards defraying the expense of the patent charge. Afterwards, at a town meeting, in February, 1706, it was voted, that all former gifts and grants should stand good, and that if every man had not had his just right or division, (alluding, probably, to some prior division or parcel *of their lands,) he should have it, on making his right appear to the town. It was, at this same meeting, resolved, that all the undivided lands should be divided to them that had justly paid to the patent, according to what they had paid.
Votes o[town meetings, relative to the common property of the town, unless carried into execution, may be altered or rescinded by subsequent town meetings.[ * 332 ]
This last resolution appears not to have been acted upon, and it was probably not intended to apply to the plains and beaches now in controversy. But no resolution of the kind, not carried into effect and executed, was binding upon a subsequent town meeting. It was not in the nature of a compact with certain individuals, incapable of being revoked, and susceptible of being specifically enforced. There was no mutuality in the case, and scarcely the semblance of a consideration, for the little nominal assessment that each possession had paid, say twenty years before; for the charges on procuring the patent, applied to the patent at large, which' covered all their individual possessions and grants under the town. The interest that each person had in the undivided lands, was merely as being' an inhabitant of the town, or, as he may be termed, in relation to the subject matter, a member of the corporation. But I consider a vote or. resolution of the town to divide their common lands, upon whatever plan, as subject to modification or repeal by a subsequent vote, provided no act had been done under it, by which individual rights have become vested. It was an act of legislation over the subject; and no private right arose and became vested, unless a division was actually made and confirmed. Our statute, relative to town meetings, expressly admits, that their regulations, concerning their common lands, may be altered or revoked. It would be contrary to all precedent and principle, to undertake, in this Court, to enforce specifically such a vote. There must be a clear vested right, founded on a contract mutually binding, precise and certain in its terms, and made for an adequate *Consideration, before this Court can, consistently with any sound rule or discretion, interfere.
The deeds which the plaintiffs have produced, of sales of the interest which the grantors claimed in those commons, by purchase, or inheritance from those who had paid their assessed proportion of the expenses in procuring the patent, are no evidence of right. The individuals who trafficked in these assumed rights, may have attached value to them, under the impression that the common lands, when divided, would be divided and apportioned according to that assess*332ment. But these impressions of individuals gave no new or binding force to the resolutions of the town. They remained as before, subject to any alteration, or repeal, that ^e town might subsequently deem meet; and I think it is very probable, that no town resolutions to divide their commons, however general in terms, which were of a date prior to 1752, were intended to apply to the plains and marshes now in controversy.
The plains, Teachesj eluded’ within ent to ^he^towñ of Hempstead, common property ofthetown, ®™t®pí of plains as have byreguKTot™ meetings, to individuals-*332[ * 333 ]
Those plains are of such great extent, and so naked and unfertile, that it is not probable they would, in those times, have been deemed worth the labor and expense of fencing and cultivating in small private farms. It is notorious that they have continued an immense waste down to this day. We find that when the town meeting, in 1723, voted that all their lands, not yet laid out, were to be divided to every person, according to what he had justly paid to the patent, they expressly excepted the plains, which were to remain in common until further orders. In April, 1745, the subject of the plains came again under consideration, and persons were appointed to consult whether they should be divided, or fenced from other towns. At last, a town vote was obtained, on the 30th of March, 1752, that the plains should be divided according to every person’s right in the patent, and persons were appointed to carry this resolution into effect. The committee were to judge and adjust men’s rights, as they should appear to *them. Under this resolution, there were continued appropriations, for many years, not indeed of the principal part of the plains, but of small detached parcels of land around the skirts and edges of them; and these were granted to individuals, as they, from time to time, presented their claims. The quantity of land claimed and allowed, was according to the ratio, or proportion, of one acre for every 2\d., or five acres for every Is. of the original assessment. There is such a singular coincidence between the lands allowed and this ratio, that it could not have been accidental. In this way, the claims founded on the original assessment to pay the expenses of the patent, were probably satisfied, without having- any application or pretence to the great body of the common lands. These appropriations continued to be made, down to the year 1767, and from that time forward, as I apprehend, the books are silent about any further division. This vote of 1752 was the test resolution on the subject, and this did not apply to the marshes and beaches, which are also the object of this suit, and which, together with the great body of the undivided plains, continued to be the subject of town regulations, U is a just presumption, that all claims, founded on this very ancient pretext, were presented, and passed upon, and ex- ' *333tinguished, between 1752 and 1767, and that those not exhibited (if any such there were) became obsolete, and were deemed to be abandoned.
0f the sums which the freehabitants were “„pt“bule,y to° wards the exP®”?^® (°( °ben°m?rom Pthe no ground for a Partltlon of the erty of them™ a™°n|sinedci™1_ “ftef thiTkpse of more than a csntury' &Jherep^l"d rommon”und¡™d®d K(°per(f Hempstead, at d!°A[™e °f two^towns* in 1784-[ * 334 ]
This last effort towards a division of the plains, if it meant any thing more than to satisfy the claims, in the ratio which was adopted, had essentially failed; and, no doubt, they have been thought to be more conveniently and usefully ' held as corporate or common property of the town, for common pasturage, than in any other way. It is, perhaps, fortonate that the ancient grants and usages are susceptible of that construction. Judging from the past, it is *doubtful whether the plains will be ever worth fencing into small private farms, or even of being cultivated, further than by gradual and almost imperceptible encroachments; This, however, is a question fitly confided to the inhabitants of the town.
To undertake, now, to compel a division, to satisfy any remaining outstanding claims, founded on the assessment of 1685, would (if there were no other difficulties in the way) be giving a most dangerous and unprecedented sanction to a demand, feeble in its origin, and stale from its antiquity. If ever time formed an equitable bar in any case, this is that case. The claimants amounted to 165 persons, upwards of 130 years ago, and they must, by this time, have become exceedingly multiplied and dispersed. To undertake to ascertain the certainty and extent of those claims, would be now very difficult and dangerous, if not impracticable. The true and sound remedy for such a case is, to stop the inquiry, by the application of the legal presumption that every just claim was satisfied before 1767, and that all litigation now is barred by the acquiescence and laches of parties, and by the lapse of time. I cannot conceive of a more feeble ground, than that of this assessment of 1685, for compelling a division of all the common lands of Hempstead, when we take into consideration its small original amount, its original object, the satisfaction it has received, and the time it has lain dormant.
[ * 335 ]
I am thus satisfied, from every view of the case, that the plaintiffs, as private individual claimants, are not entitled to call for the aid of this Court to compel a partition of these lands; and I am further of opinion, that they were common undivided property, belonging to the freeholders and inhabitants of Hempstead, at the time of the division of the town in 1784.. There is then no foundation for the present bill. The town of North Hempstead *is not a party to the bill; and, therefore, it is not a question properly arising in this case, whether the freeholders and 'inhabitants of that town continued, in their new corporate capacity, to hold a share *335in those common lands. I cannot concur in the suggestion, that any freeholder or inhabitant of North Hempstead may, when he pleases, file a bill in behalf of the town, and bring its common rights into discussion. In respect to property held in common, a town is a .corporate body, acting by the proper organ of its will, a legally assembled town meeting. Without a resolution, recorded by the town clerk, I do not think there would be the requisite evidence of the will of a town to commence a suit respecting its rights. It appears tQ pg a]t0gether inadmissible, and destructive of order and peace, to admit private individuals, of their own mere motion, to carry on a suit in behalf of the town, respecting its common' property, and without the knowledge and consent °f the town, duly declared.
new^town ‘of North ¡Hemptoany shareln that common property?Qum- But private thatVtownS cannot file a bill to tioneSiveeto c00fmmon town? ° ‘ie The erecting doe” "not ‘take away or impair old town in regard to its commdessIhereTe some special act erectin'” the new town,0 for a new town, or a erected ouí’of an old one, it totheuseoWhe town property, in'the okftown common expense of ail beVre’Ihe3”^ vision; unless express18provis” ion to the con-*335' But admitting that I am mistaken upon this point, and that there are really sufficient parties before the Court, to bring into discussion the right of the town of North Hempstead to a share in these undivided lands, I should still be of opinion that the suit is not to be sustained. On this point, however, I wish to be understood as not giving any decided opinion,' because I do not believe it to be necessary. I will merely suggest some very great difficulties in the way of the claim, if any there be, on the part of that town.
The common lands that lie within the bounds of Hemp-stead, and which belonged to that town before the division, must be under the exclusive regulation of the freeholders and inhabitants of Hempstead, as the inhabitants of both towns cannot assemble in joint meeting for that purpose. This exclusive power of regulation is one necessary attendant on exclusive right.
[ * 336 ]
*The lands belonged to the town as a community, in its corporate capacity. The erection of a new town cannot ™Pa’r the rights of the old one, and the new town has none but what are given to it at the time of creating it, or subsequently. Its power is confined to its own limits, and, without some special provision, it cannot, as of course, possess an7 control or rights in or over lands lying within another town. Thus, for instance, if a town owned a school-house, 01 a poor-house, or a church, or a town-house, or a cemetery, it is not to be presumed that the new town would have any r’ght to the use of such property, though the inhabitants of the new town may have contributed to the expense of it. Such things are necessarily local and exclusive in their enjoyment. When a new county is erected out of an old one, it loses entirely its share in- the title and its right to the use of the coiirt-house and gaol remaining in the old county, though built at the common expense.
towa takes”to itself, unless otherwise vided^the com-™°n ^nds^that bounds! The general n88Sed relative to towns, made ™wh¿nfhisntrespcct.[ * 337 ]
The act dividing the town of Hempstead included some part of the plains in North Hempstead, and the greater part in Hempstead. If it was not intended that each town should enjoy exclusively the commons that fell within it, some express provision would probably have appeared in the law. The line of division may have been made in reference to those very commons. One part of a town may have better land, better harbors, better access to markets, and, perhaps, more wealth than another part; and when the line of division comes to be made, the parties themselves may throw the greatest part of their common lands into one scale, to balance the greater advantages in the other. Many local reasons may occur in establishing lines of division, founded on the very fact, (and which, I believe, is the general understanding,) that each town takes to itself, unless otherwise specially provided, the common lands that fall within its bounds. This is also the case when a new state is erected out of an old one. In the present instance, *there was nothing in the act of 1784 to repel the natural and necessary inference, that each town took what common lands and common privileges fell within its limits, and no more. There was one special provision in that act, giving the inhabitants of each town, reciprocally, the right of catching oysters, fish, and clams, in the creeks, bays, and harbors of the other. This express reservation on one point, and consequent silence on all others, affords a strong presumption that no other reciprocal rights, upon each other’s common rights, were intended to be reserved.
*337[ * 338 ]
*336It is said, however, that in the subsequent act of 1788, being, a general revised act, relative to towns, the right of each town in the common lands of the other was revived. But in answer to this, it may be said, that we can hardly presume the legislature intended to interfere with rights absolutely vested and fixed under preceding laws. We ought not to recur to this construction, if the act be susceptible of any other, and especially of one quite as easy and rational. The general proviso in the act of 1788, that “ none of the bounds or lines by this act shall take away, or abridge, or affect, the right or title of any person or body politic in any manner whatsoever,” was not intended to be taken in a literal sense. The act did, certainly, take away the right or title of the people of North Hempstead to go and vote, as they formerly used to do, at the town meetings in Hempstead. That right was lost, and a new one given to them by the act. Strictly speaking, the new town of North Hempstead had not any previous right (and it was pre-existing rights that the act alluded to) to be abridged or taken away. They were, for the first time, created a *337town or" body politic, with a right to regulate their own common lands, but not the lands of others. To say that the town of North Hempstead have no right or share in the common lands within the bounds of Hempstead, is not taking away, or abridging, any of their rights; for, as a *town, they never had such a right. That saving clause, therefore, has nothing to do with this question.
It is further understood, that so far as the plains fell within the bounds of North Hempstead,, the inhabitants of that town have acted, as to them, as well as to their other town property, as if each town owned exclusively its own commons. This appears from their town meeting resolutions, from April, 1785, to April, 1808. They have not only put that construction upon the act, but there is evidence to infer an adverse exclusive possession of the commons in Hempstead, by the town of Hempstead, for 20 years after the division, and before the filing of the bill. If so, this would, probably, form a legal bar to their claim, however otherwise well founded. A prescription of 20 years will bar a claim to a right of common.
These are some of the difficulties which have arisen in my mind as to a claim on the part of North Hempstead, if they were now a party to the suit. But I have not formed, and wish not to express, any decided opinion on this point. It is sufficient, in this case, that the plaintiffs, as individual claimants, have no title; and the bill must, consequently, be dismissed, with costs.'
Bill dismissed.
The town meeting votes or resolutions, which were particularly selected and mentioned by his honor, were those of the
25th Janua-ry, 1686.
November, 1686.
5th August, 1687.
28th December, 1688.
1st April, 1690.
24th December, 1690.
19th October, 1691.
15th March, 1696.
23d January, 1704.
2d April, 1705.
• 1st-, 1707.
11th January, 1714.
5th April, 1715.
3d -,1716.
7th-, 1730.
6th-, 1736.
7th April, 1741.
6th-—, 1742.
5th-, 1743.
1st -, 1746.
19th July, 1748.
3d April, 1750.
1st-, 1755.
19th-, 1757.
31st August, 1761.
1st Tuesday in April, 1764.
17th June, 1765.
1st Tuesday in April, 1772.
5th April, 1774.
1st Tuesday in April, 1779.
1st-, 1780.