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TOWN SMITHTOWN v. BROOKLYN GUN CLUB ET AL. (12/20/68)

SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY 1968.NY.44008 <http://www.versuslaw.com>; 296 N.Y.S.2d 633; 58 Misc. 2d 708 December 20, 1968 TOWN OF SMITHTOWN, PLAINTIFF,v.BROOKLYN GUN CLUB ET AL., DEFENDANTS Howard E. Pachman for plaintiff. York M. Iguchi for Sea Breeze Marina; Taylor & Roberts for James M. Shay and others; Benjamin Greshin for San Remo Civic Assn., Inc.; Weiss & Bronsten for Warren and Arthur Smadbeck, Inc.; A. Bruce Bielaski, Jr., for Brooklyn Gun Club; Cahill & Cahill for Eleanor Hauschildt (Sprofera) and others; Kelly, Beesting & Kelly for Peter Hildebrand and another; Edward A. Uniacke for Perri Enterprises, Inc.; Simon S. Katz for Alice T. Garnjost and Herman Garnjost. Louis J. Lefkowitz, Attorney-General (Samuel Backlar of counsel), for the People of the State of New York. John P. Cohalan, Jr., J. Author: Cohalan


John P. Cohalan, Jr., J.

Author: Cohalan

 This is a proceeding under article 15 of the Real Property Actions and Proceedings Law. At issue is the location and ownership of "Aaron's Landing", a 90-rod strip of land running along the west side of the Nissequogue River in the Town of Smithtown, including land between high and low-water marks.

In the composite of its complaint, of oral argument at trial, and of briefs submitted to the court, the town traces its claim back to the year 1735 (complaint) and beyond that to Richard (Bull) Smith, (1665 and 1677) colonial patentee; and, in effect, contends that the real property now encompassing the town was given to Smith in a representative or quasi-governmental capacity, only.

Defendants urge that (1) Smith took as an individual and/or (2) that Aaron's Landing was set aside for a definite, dedicated use, which, upon abandonment, effected a reversion to the heirs and assigns of Smith. Factually, since the disputed terrain was not used for any public purpose from about the year 1870 to the present, they urge also, the defenses of adverse possession and estoppel -- the latter because the town allegedly recognized their ownership by assessing the various parcels and by levying and collecting taxes therefrom.

Three hundred years of history and legend have obscured the original scene; and many a tide has ebbed and flowed over thatch beds, marsh and meadow; and many documents and records have been submitted to the court to establish its pristine status, which we now seek to resolve.

In the year 1664 Charles II, y-clept "The Merry Monarch", sat on the throne of England. Repute has it that "he never said a foolish thing, nor ever did a wise one". But, in that year with royal largesse, he gave away, by right of conquest, vast portions of land along the Atlantic seaboard to his younger brother, James, then Duke of York, as a crown colony. In the latter end, it turned out to be a wise "thing" indeed.

James, in turn, deputized Richard Nicolls as his ancient with plenary powers to govern part of the given land in his stead. Our specific concern is with the East Riding of Yorkshire, which today we know as Suffolk County in the State of New York.

On March 3, 1665 Governor Nicolls granted unto Smith a patent encompassing all of the present Town of Smithtown. As to that part of the town on the east side of the Nissequogue, the grant was undisputed; but it necessitated a confirmatory grant in 1677 from Edmund Andros, successor to Nicolls, to vest Smith with undisputed title to the land west of the river, after legal jousts in the Dutch and English colonial courts had served effectively to oust the Town of Huntington from its claimed ownership.

A prerequisite to the enjoyment of the Nicolls grant ordained that Smith settle 20 families upon the land. It went on to note the existence of the litigation with Huntington, as a result of which Smith "is molested and hindered in the quiet possession thereof" and thus need settle only "ten families on the lands before mentioned within three years after the date hereof".

Immediately following appears the caveat: "But if it shall hereafter happen that the said Richard Smith shall cleere his title and be lawfully possessed of the premises as aforesaid that then he the said Richard Smith shall settle the full number of twenty families within five years after such clearing of his title".

Forasmuch as the Andros patent is silent on the plantation condition, it was presumably adhered to. Thus the original patent was confirmed "unto ye said Richard Smith, his heirs and assignes":

"ye afore recited tracts or parcells of land on both sides of the Nesaquake River, together with all ye lands, soyles, woods, meadows, pastures, marshes, lakes, waters, fishing, hawking, hunting and fowling, and all other proffits, commodities and emoluments to the said parcels of land and premises belonging".

"To have and to hold, the sayd parcels or tracts of land and premises, with all and singular the appurtenances, unto the said Richard Smith, his heirs and assignes, to the proper use and behoof of him the said Richard Smith, his heirs and assignes forever. The tenure of the said lands and premises to be according to the custom of the manor of East Greenwich, in the County of Kent in England in free and common socage and by fealty only. As also that the said place be established as a township and be called and known by the name of Smithfield or Smithstowne, by which name to be distinguished in all bargaines and sales, deeds, records and writeings".

East Greenwich was a royal manor mentioned in grants or patents as descriptive of the tenure of free socage.

As quit rent and acknowledgment, Smith was to pay "one good fatt lamb" per year.

In 1691 the colonial Legislature again confirmed the patents, first as against their majesties of England and then "unto all and every the several and respective corporations or Bodies Politick, of the Cities, Towns and Manors and their successors, and also unto all and every the respective freeholders, their heirs and assigns forever within the premises". Of this clause, Judge Denio in People v. Van Rensselaer (9 N. Y. 291, 347) said: "The intent to embrace grants in fee to individuals seems to me to be nearly as strong as language could make it. There are extant, grants to the freeholders of towns, as a sort of corporation (2 Wend. 110), but these could not have been intended, for it is to the several and respective freeholders, within the province; and then it is not to their successors as in these quasi corporate grants, but to their heirs and assigns for ever; and this language could not be applied to any subject with which I am acquainted, except the grants of land to an individual".

Smith sired numerous progeny, eight of whom survived him (including two daughters, Deborah and Elizabeth), some of whom were among the 20 families required to be settled within the limits of the territorial grant.

In his lifetime he made many and varied gifts and grants of land to his children and to strangers, treating it for all purposes as his to give or grant.

And well he might, relying on his "free and common socage". For, in 1660 when the restoration re-enthroned the Stuarts, the supporters of Charles II, fearing the possible arrogation of power once assumed by his decapitated father, exacted from him the legislation of 1660, to which he proved most amenable. "By this statute land theretofore held in military tenure or by socage tenure in capite was changed to free and common socage. Future land grants were to be made exclusively in common socage". (See 1 Powell, Real Property, ยง 32.) According to Buckle (History of Civilization in England), this legislation marked the end of the feudal era, a way of life which, happily, never crossed the sea to the American Colonies.

Socage was a species of tenure, in England, whereby the tenant held certain lands in consideration of certain inferior services of husbandry to be performed by him to the lord of the fee. Black's Law Dictionary (4th ed.) page 1561, tells us that: "Socage is of two sorts, -- free socage, where the services are not only certain, but honorable; and villein socage, where the services, though certain, are of baser nature".

That socage referred to in the Andros patent was known as gavelkind (free socage), which, as the same dictionary records (p. 811), is: "A species of socage tenure common in Kent, England, where the lands descend to all the sons, or heirs of the nearest degree, together; may be disposed of by will; do not escheat for felony; may be aliened by the heir at fifteen; and dower and curtesy is given of half of the land."

So, in reliance on this socage, when the founder passed to his reward in the year 1692, his will, made jointly with Sarah, his wife, and dated in the same year, provided, inter alia : "Item. To Jonathan Smith, our eldest son, we give and bequeath * * * and that lot of meadow over against the hill on ye west side of ye river."

It is this devise, out of which, as defendants claim, Aaron's Landing was carved. Plaintiff asserts to the contrary.

And to each of the eight children, saving only Elizabeth (Townley) to whom a specific devise was made, he and Sarah gave "an equal share of land in division with the rest of our children."

Sarah survived her husband for about 15 years, and during viduity, did nothing to disturb the status quo with ...


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