The Commissioners of the Land Office, by letters patent dated October 18, 1854, granted to George Brooks "for the purpose of promoting the Commerce of our State, and for no other object or purpose whatsoever, * * * the power and authority to erect any dock or docks * * * upon the land under water" described in the deed. By the same deed they also granted to George Brooks, his heirs and assigns, the land under water, excepting and reserving to the People of the State "the full and free right, liberty and privilege of entering upon and using all and every part of the above described premises, in as ample a manner as they might have done had this power and authority not been given, until the same shall have been actually appropriated and applied to the purposes of Commerce, by erecting a Dock, or Docks thereon." The deed further provided 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 *Page 80 same, then these Presents and everything herein contained shall cease, determine and become void."
George Brooks was the owner of the uplands adjacent to the land under water. Without exercising his power or authority to erect a dock or docks, he conveyed the uplands, and, through mesne conveyances, title to the uplands was transferred to John Good in 1886. No deed in Good's chain of title specifically included the land under water appurtenant to the adjacent upland. John Good applied to the Commissioners of the Land Office for a new grant of the land under water adjacent to his uplands. The application was granted, and in February, 1887, he received a grant of the same land under water, which was described in the grant of 1854 to his predecessor in title, except that it extended for a lesser distance under the sea. That grant, too, was made subject to the same exceptions, reservations and conditions as the earlier grant.
In 1932 the State began this action, asking that the letters patent of 1854 and of 1887 be declared null and void, and that the defendants be barred and foreclosed of all right, title and interest in any part of the premises through or under the said letters patent. In the complaint the plaintiff, as a first cause of action, alleges that the grantee under the letters patent of 1854 failed to improve the lands under water, and abandoned his grant and all his right, title and interest in the land described in the grant. As a second cause of action, the plaintiffs allege that the grantee under the letters patent of 1887 failed and neglected to perform the conditions upon which that grant was made. Upon motion of the defendants the first cause of action has been dismissed.
When Good applied for, received and accepted, from the State, a grant of the land under water in front of his upland, he did not know that this court, in 1899, would decide that title to land under water is appurtenant to title in the adjacent uplands, and passes by a conveyance *Page 81 of the uplands without specific description (Archibald v.N.Y.C. H.R.R.R. Co., 157 N.Y. 574); nor did he know that in 1927 this court would decide that a grant of land under water conveyed an unrestricted title in fee, subject only to a right in the State to vacate the grant by direct action or proceeding brought for that purpose. (Matter of City of New York [UpperN Y Bay], 246 N.Y. 1; New York Foundation v. People,259 N.Y. 54.) Perhaps without such prescience, he may have believed that a deed to the uplands did not convey to him a fee title to the adjacent land under water which could be defeated only by direct action or proceeding brought by the State. Whether at that time he was mistaken as to his rights in the land under water is unimportant now; for this, at least, is clear, that Good asked for and received a grant from the State of an unquestioned right to the land under water, subject only to the condition that the grantee or his heirs or assigns build a dock or docks within five years from the date of the second grant. Except for that grant, any right or title he may then have held could have been terminated for condition broken in 1859, whenever the State might choose to bring appropriate proceedings for that purpose. Because more than seventy years have elapsed since the breach of the condition contained in the first grant, the courts below have held that any cause of action based upon that breach is barred, and that the defendants' title derived from the grant of 1854 is now immune from attack. Even though we assume that the first grant conveyed an unrestricted fee subject only to defeasance for breach of condition, and that any action to defeat that title is barred by the Statute of Limitations, the question still remains whether the defendants, by accepting the second deed from the State, precluded themselves from asserting title under the first deed.
It is undoubtedly true that a deed by the State of land which it has previously granted to another is a nullity. *Page 82 It does not follow that a grant to one who already has a doubtful or defeasible title through an earlier grant is also a nullity. In such case both grantor and grantee assume that the title is in the grantor; and a grantee may be estopped from denying the grantor's title so long as he retains any benefit from the new grant. (Cf. Greene v. Couse, 127 N.Y. 386.) Thus, where an owner of real estate, whose title is doubtful, obtains a confirmatory conveyance which is subject to conditions or limitations, he cannot reject the conditions and limitations after he has obtained the desired advantage which flows from the confirmatory conveyance. (People v. Foote, 242 App. Div. 162. ) Again, where a grantee obtains a deed of correction, placing limits to the grant which had previously been omitted, the last description is conclusive. (Town of Babylon v.Darling, 207 N.Y. 651.) That is true, "even if we suppose, in opposition to the usage under our government, that there are technical difficulties in the way of a legal surrender to government of an estate in fee." (Nicoll v. Trustees ofHuntington, 1 Johns. Ch. 166, 183, opinion by Chancellor KENT.) It is only by the interposition of such "technical difficulties" that the defendants have succeeded in the courts below.
Good's title in 1887 was enshrouded in doubt and existed only by the sufferance of the State. Good applied for something he did not then own: an unquestioned right to the land under water, which could not be terminated unless the grantee again failed to comply with the condition of the new grant. Acceptance of a new grant is an admission that title to the property granted is in the grantor. It is inconsistent with an assertion that the grantor had no power to make the grant. Where the parties have acted under mistake, the admission may perhaps not be conclusive at all times, but that is not true where the grantee, who already has a defective, restricted or doubtful title, obtains a new grant which removes defects, restrictions or doubts. That is the reason why *Page 83 the terms of a correctional or confirmatory deed are dominant and conclusive, and the title of the grantee is determined solely by the new grant. That is true wherever there was intention to fix the rights of the parties by the new grant rather than the old. If the grantee held rights under an old grant different from those included in the new grant, then he must be deemed to have voluntarily abandoned those rights.
There is no suggestion in this case that the parties here intended that after the new grant the grantee might still assert a superior title under the old grant. Both parties agreed, or at least assumed, that title was then in the grantor, and that the grantor had power to make the new grant. That is true in regard to the land under water described in the new grant; it is also true in regard to the strip of land under water not described in that grant, extending further into the sea; for title to land under water for promotion of commerce is inseparable from the shore uplands to which it is adjacent. Perhaps the grantee mistakenly believed that he had no rights under the old deed; perhaps he merely had doubts as to his title. In either event, the grantee desired a title invulnerable, at that time, to attack, and he obtained exactly what he asked for. If the grantee believed he had rights, though doubtful, under the old deed, his intention must have been to surrender or abandon them; if both parties believed that he had no rights, then there was no occasion for surrender or abandonment. It is unnecessary to decide whether technical difficulties stand in the way of "a surrender to government of an estate in fee;" the rule is well established that, where a grantee requests and receives from the State a new deed which removes defects, restrictions or doubts as to his title, the rights of the parties are conclusively determined by the last deed. (Nicoll v. Trustees ofHuntington, supra; People v. Foote, supra.) The grantee here, in any view of the case, obtained under the second grant immunity from *Page 84 attack by the State until the condition of that grant was broken. His successors in title may not now urge that the attack upon their rights under the first deed comes too late. Acceptance of benefit under the new deed, by operation of law, as well as by intent of the parties, terminated any fee title which the grantee may have had under the first deed.
The orders should be reversed, with costs in all courts, and the motion denied.