Opinion
September Term, 1900.
Treadwell Cleveland, Frederic E. Mygatt and William V. Rowe, for the relator.
John C. Davies, Attorney-General, and Lester W. Clark, for the respondents.
The power of the court to review the decision of the Commissioners of the Land Office denying the relator's application for a grant is challenged by the respondents' counsel, and this presents the first question for our consideration. Early in the history of the State the power which was vested in the Legislature to grant lands under navigable waters within the limits of the State, to the title to which the State had succeeded, was confided to a Board of Commissioners of the Land Office. (Laws of 1786, chap. 67; Laws of 1801, chap. 69.) It was said by the chancellor in Lansing v. Smith (4 Wend. 10): "The object of the act was to authorize the commissioners of the land office, in their discretion, to make such grants in certain cases for the promotion of commerce. It was to prevent the necessity of frequent applications to the legislature for that purpose." The powers of the commissioners in respect to grants of land under water as conferred by section 70 of the Public Lands Law (Laws of 1894, chap. 317, as amd. by Laws of 1895, chap. 208) are as follows: "The commissioners of the land office may grant in perpetuity or otherwise, to the owners of the lands adjacent to the lands under water specified in this section, to promote the commerce of this State or for the purpose of beneficial enjoyment thereof by such owners, or for agricultural purposes, so much of said lands under water as they deem necessary for that purpose. No such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant made to any other person shall be void."
From the character of their duty and the language of the statute conferring the power there can be no doubt that the commissioners have an absolute discretion to make or not to make grants of land under water to the proprietor of the adjacent lands. The statute constitutes them the agents of the State to convey lands under navigable waters, and the only limitations on their powers are those contained in the statute. Although they are not a judicial body, it sometimes becomes necessary for them in the performance of their duties to exercise judicial functions, and their action is then subject to review. Such was the case in People ex rel. Burnham v. Jones ( 112 N.Y. 597), where the question before the commissioners was the ownership of the adjacent uplands, the title to which was claimed by both the applicant and the relator, and the commissioners, after hearing the evidence of the parties on that question, erroneously determined that the applicant was the owner and, in violation of the statute, made the grant to him instead of the relator, who was the legal proprietor. The ground on which the action of the commissioners was there reviewable is that, in the determination of the purely legal question as to who was the riparian owner, the commissioners were exercising judicial functions. But the court, recognizing the discretionary power of the commissioners, there said: " It is not claimed by the relator that the commissioners can be controlled in the exercise of their discretion upon the question whether a grant shall be made or not; but it is insisted if they do make such grant, it shall issue to the owner of the adjacent uplands, and not to a stranger." In People ex rel. Underhill v. Saxton ( 15 App. Div. 263) the court, after considering a question of ownership which was before the commissioners, said: "It is further claimed that no sufficient necessity is apparent for granting the applications, or, if at all, not to the extent claimed, and that the rights of the public will be improperly interfered with." After quoting section 70 of the Public Lands Law, Mr. Justice MERWIN, writing the opinion, says: "The commissioners are evidently clothed with a discretion in the matter. In People ex rel. Burnham v. Jones ( 112 N.Y. 597) it was assumed that this discretion as to whether a grant shall be made or not, assuming they had a right to act and dealt with the proper party, may not be controlled. The determination of inferior jurisdictions in matters within that jurisdiction which are confided to their discretion are not reviewable. * * * The proofs before the commissioners presented the situation, and their judgment as to the necessity or the extent of the grants should not be interfered with."
The writ lies to review only the judicial action of inferior tribunals and officers, and the fact that a public agent exercises judgment and discretion in the performance of his duties does not make his action judicial. ( People ex rel. Second Ave. R.R. Co. v. Board of Comrs., 97 N.Y. 37; People ex rel. Trustees v. Board of Supervisors, 131 id. 468; People ex rel. O'Connor v. Supervisors, 153 id. 370.)
Here there was no judicial determination of any question by the commissioners. The relator's ownership of the upland was conceded, and although he contended before the commissioners that the grant made in 1816 by the State to Lawrence and Van Beuren is void on its face, the commissioners did not decide the question of its validity. They merely declined, in the exercise of the discretion confided to them, in view of the situation presented, to grant the application, and whatever rights the relator had as riparian owner were unaffected by their decision. Unquestionably the discretion of the commissioners was affected by the equitable considerations that more than eighty years previously the State, at the request of Tompkins, who was then the owner of the uplands, granted the land under water applied for to Lawrence and Van Beuren, who immediately thereafter granted it to Tompkins, through whom title was acquired by the remonstrant, who in good faith has expended large sums thereon; but, for the reasons stated, I am of opinion that their judgment cannot, on this ground, be interfered with.
The relator's ownership of the adjacent upland gave him no title to the land under water in front of his premises ( People v. New York Staten Island Ferry Co., 68 N.Y. 76), and whatever may be his right of access to the water and other rights as riparian owner, he cannot demand or compel a grant to him from the State of the land under water. He has no legal right to such a grant, the giving or withholding of which rests, I think, entirely in the discretion of the Commissioners of the Land Office.
The writ should be dismissed, with costs.
All concurred, except SMITH, J., not voting.
Writ of certiorari dismissed, with fifty dollars costs and disbursements.