App. Div. 285] Third Department, May, 1921. relief. She did ask that relief be denied to the plaintiff; also that $150 per month alimony be granted her. This demand for alimony was not based upon any affirmative relief to be granted to her, but evidently in case the husband was granted a decree. The Nevada decree dismissed both the complaint and the answer. That decree is valid and binding upon the parties and has the same force between the parties as if procured in this State, but it does not decide matters not involved in that action. The plaintiff here is not barred by the Nevada decree from bringing an action for separation in this State, nor is she barred thereby from securing alimony in such an action, should the Special Term consider her entitled thereto. We have read the cases cited by the court below and find nothing in conflict with the above. The order is reversed, with ten dollars costs and disbursements, and plaintiff allowed alimony in the sum of forty-two dollars a week, from the time motion was made, and for counsel fee and expenses five hundred dollars, with ten dollars costs. All concur. Order reversed, with ten dollars costs and disbursements, and plaintiff allowed alimony in the sum of forty-two dollars a week, from the time motion was made, and for counsel fee and expenses five hundred dollars, with ten dollars costs. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE BALDWIN and JENNIE BALDWIN, Appellants. Third Department, May 4, 1921. Public lands adverse possession against State distinction between lands held by State as sovereign and as proprietor Statute of Limitations does not apply where lands held as sovereign — adverse possession not completed before creation of Forest Preserve not bar to State — failure of Forest Commission to assert title. In the absence of statute authorizing it, lands of a sovereign State cannot be lost to or taken from the State by failure to assert her title, and, after the passage of a statute of limitations, such land only as the State holds Third Department, May, 1921. [Vol. 197 as a proprietor may be lost by adverse possession of an individual; it cannot lose such lands as it holds for the public, in trust for a public purpose. The lands of the Forest Preserve created by chapter 283 of the Laws of 1885 and section 7 of article 7 of the Constitution, which became operative January 1, 1895, are held by the State in her sovereign capacity in trust for a public purpose and cannot be acquired by adverse possession. The claim of the defendants that they have title to the lands in question, which are a part of the Forest Preserve, by adverse possession based on a deed to them in 1865, cannot prevail, since the State acquired title thereto by tax deed in 1851, and in 1885, when the Forest Preserve was created, the defendants had not acquired title by adverse possession. The fact that the Forest Commission failed to assert title to the lands in question as it was authorized to do by chapter 283 of the Laws of 1885 does not prejudice the rights of the State, nor is it estopped from asserting its rights by the unauthorized acts or omissions of the Forest Commission. JOHN M. KELLOGG, P. J., dissents, with memorandum. APPEAL by the defendants, George Baldwin and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hamilton on the 24th day of January, 1920, upon the decision of the court rendered after a trial without a jury at the Fulton county Trial Term. Eugene D. Scribner, for the appellants. Charles D. Newton, Attorney-General [William T. Moore, Deputy Attorney-General, of counsel], for the respondent. VAN KIRK, J.: The State acquired title to the lands in question, situated in Hamilton county, under a tax sale and a deed following, dated February 18, 1851. The acquired title of the State is not questioned, but the defendants claim they have gained title by adverse possession under deeds, the first of which is dated July 15, 1865. The lands had been occupied, cultivated and used, as was usual and customary in that section, since 1857 or 1858 by the defendants and their predecessors. During all the time these lands were assessed and taxes paid to the State by those in possession. These taxes cannot be looked upon as rents or profits of the real property. The opinion of Mr. Justice WHITMYER gives a complete and very accurate statement of the facts of the case and the App. Div. 285] Third Department, May, 1921. statutes applicable and well expresses the conclusion he has reached. (113 Misc. Rep. 172.) The trial court has adopted the construction put upon the California statute in Weber v. Harbor Commissioners (18 Wall. 57) as the true construction of our statute (infra). The appellants contest this construction. The California statute, so far as material, reads as follows: "The People of this State will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the People to the same, unless"1. Such right or title shall have accrued within ten years before any action or other proceeding for the same is commenced." The remainder of the section as to rents and profits is identical with the corresponding New York statute, except as to number of years. (Cal. Code Civ. Proc. § 315; N. Y. Code Proc. § 75.) The California statute is identical with our statute, as it formerly existed (except the number of years), but the New York statute has been changed and now reads (Code Civ. Proc. § 362): "When the People will not sue. The People of the State will not sue a person for or with respect to real property, or the issues or profits thereof, by reason of the right or title of the People to the same, unless either: "1. The cause of action accrued within forty years before the action is commenced; or, "2. * * * We have observed the difference in expression in the two statutes; also that, in the Weber case, the words in the California statute, unless such right or title "shall have accrued," are construed to mean are construed to mean "shall have existed;" and that the expression in that opinion, "no assertion of her [the State's] title or interest is made," is used as equivalent to the words of the statute, "unless * any action or other proceeding for the same is commenced;" also the presumption of a grant arising under the permission given in the statute is held to be rebutted by the assertion of title in the legislative act referred to; and further that, if our statute (Code Civ. Proc. § 362, supra) is strictly construed, the cause of action by the State did not accrue within forty Third Department, May, 1921. [Vol. 197 years before the action was begun, since it accrued in 1857 or 1858 and the action was not begun till March, 1918, and, therefore, by its agreement in the statute the State would not sue. (Fulton Light, H. & P. Co. v. State of New York, 200 N. Y. 400, 420; People v. Arnold, 4 id. 508.) We are of the opinion that the vital question in this case is this: Was the land, the title of which is in question here, owned and held by the State as a sovereign in trust for the People, or as a proprietor only? There is a well-recognized distinction between lands held by the State as sovereign in trust for the public and lands held as proprietor only, for the purpose of "sale or other disposition." (Weber v. Harbor Commissioners, supra, 68.) In either circumstance, unless a statute (making an agreement on behalf of the People not to sue) authorizes it, lands of a sovereign State cannot be lost to, or taken from, the State by failure to assert her title (2 C. J. 213; Fulton Light, H. & P. Co. v. State of New York, 200 N. Y. 400, 420; St. Vincent Orphan Asylum v. City of Troy, 76 id. 108; Hays v. United States, 175 U. S. 248, 260); and, after such a statute has been passed by a State, such lands only as the State holds as a proprietor may be lost to the State; it cannot lose such lands as it holds for the public, in trust for a public purpose, as highways, public streams, canals, public fair grounds. (Burbank v. Fay, 65 N. Y. 57; 2 C. J. 213, 214, 215.) The lands in question here were held for a public use before the time within which title by adverse possession could be acquired, and these defendants have not acquired title thereto. We should have in mind that the lands in question are not within any incorporated village or city and are not lands which have been "acquired by the State of New York, upon or by foreclosure of or sale pursuant to any mortgage upon lands made to the commissioners for loaning certain moneys of the United States, usually called the United States deposit fund, and all such excepted lands acquired by the State of New York may be sold and conveyed as provided by law" (Laws of 1890, chap. 8, amdg. Laws of 1885, chap. 283, § 7), but all such lands not excepted may not be sold or conveyed in any manner. By the Laws of 1885, chapter 283, the Forest Preserve was created. This statute declared (§ 7): “All the App. Div. 285] Third Department, May, 1921. * * * * * * lands now owned or which may hereafter be acquired by the State of New York, within the counties of Hamilton, shall constitute and be known as the Forest Preserve." (See, also, Id. § 7, as amd. by Laws of 1887, chap. 639; Laws of 1888, chap. 520; Laws of 1889, chap. 24, and Laws of 1890, chap. 8.) Section 8 of the act of 1885 provided: "The lands now or hereafter constituting the Forest Preserve shall be forever kept as wild forest lands. They shall not be sold, nor shall they be leased or taken by any person or corporation, public or private." (See, also, Laws of 1887, chap. 475, amdg. said § 8.) In 1893 (Laws of 1893, chap. 332) and in 1895 (Laws of 1895, chap. 395) the act of 1885 was repealed, but the repealing acts contained identical provisions with those of the act of 1885, and so these statutory provisions have continued until to-day. (People ex rel. Forest Commission v. Campbell, 152 N. Y. 51. See Forest, Fish and Game Law [Gen. Laws, chap. 31; Laws of 1900, chap. 20], § 216 et seq., as amd.; Forest, Fish and Game Law [Consol. Laws, chap. 19; Laws of 1909, chap. 24], § 34 et seq., as amd.; Conservation Law [Consol. Laws, chap. 65; Laws of 1911, chap. 647], § 50 et seq., added by Laws of 1912, chap. 444, as amd.; Conservation Law, § 50 et seq., added by Laws of 1916, chap. 451, as amd.; Id. § 62, added by Laws of 1916, chap. 451, as amd. by Laws of 1917, chap. 266.) Article 7, section 7, of the Constitution became operative January 1, 1895, and provides: "The lands of the State, now owned or hereafter acquired, constituting the Forest Preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed." These provisions have been continued by the amendments since made in 1913 and 1918 to that section of the Constitution. (See Laws of 1914, p. 2373; Laws of 1919, p. 1783.) On December 13, 1894, the Comptroller's notice, as to ownership and possession, authorized by the statute (Laws of 1893, chap. 711, § 13; revised by Tax Law [Gen. Laws, chap. 24; Laws of 1896, chap. 908], § 133; now Tax Law [Consol. Laws, chap. 60; Laws of 1909, chap. 62], 133) was duly published, declaring that these lands in APP. DIV.-VOL. CXCVII. 19 |