CHAPTER VII

OBTAINING AND DEVESTING TITLE TO PROPERTY

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AVING defined private property and described the nature of the estates that may

be had therein and the number and kinds of title by which such estates may be held, a consideration will now be had of the principal and more common methods through which title to private property is obtained and by which it is divested.

REAL PROPERTY

The original title to land in America was obtained through discovery and conquest, and the acquiring in one way and another the soil from the natives and entering thereupon and making settlements. As between the different European nations the discovery had to be made by persons under the authority of, or recognizing the government claiming the discovery, and to perfect the title to such discovered lands the same had to be possessed.

The discovery of North America was claimed to have been made under commission from the English Crown, the first settlement being made by the English, with a public declaration that they claimed, by virtue of that discovery and settlement, possession from the thirty-ninth to the forty-fifth degree of latitude, although for a time the Dutch, by their

invasion of a part of what is now the State of New York, claimed paramount right to so much thereof. This occupancy by the Dutch was considered by the English to be in hostility to their right and a usurpation of paramount title obtained from prior conquest and discovery of the general coast. By the Treaty of Westminster perfected in February, 1674, Holland and England made peace and the Dutch title, whatever its validity, to all possessions on this continent passed to the English Crown, all Dutch patents and grants, both to municipal bodies and individual residents being thereupon recognized, respected and confirmed by the English authorities.

In 1664, by letters patent issued by Charles II. to his brother, the Duke of York, his heirs and assigns, a large territory was granted to him which included all that part of New England beginning at a place called St. Croix, next adjoining New Scotland, in America, and from thence extending along the sea coast unto a place called Pennaquie or Pannaquid and on up the river thereof to the furthest head of the same as it tended northward, and extending from thence to the river Kimbequin and upwards by the shortest course to the river Canada northward. Also the island or islands called Meitowacks, or Long Island, situated west of Cape Cod, and the narrow Higanssetts, abutting upon the mainland between the two rivers, called the Connecticut and Hudson's rivers, together with the said last river. Also all the land from the west side of the Connecticut river to the east side of Delaware Bay, and all the several islands called "Martin's Vineyard" or Nantuck's. Upon the conclusion of the Dutch Treaty of 1674,

the Duke obtained a new patent confirming the above. Under the above patents the Duke obtained the rights of the King to said lands in the same condition in which they had been held by the Crown, and upon the same trusts, and not holding or enjoying the same as private property, apart from and independent of the political character with which he was clothed by the charter.

By the English common law, the King was the paramount proprietor and source of title to all land within his dominion, and it was considered to be held mediately or immediately of him. Upon the

accession of the Duke of York to the throne in 1685, as James II, the sovereignty in such lands granted by the patent above noted was resumed by merger jure coronae, the personal ownership and privileges of the Duke of York being extinguished.

After the independence of the United States, the title to the land formerly possessed by the English Crown in this country, passed to the people of the different States where the land lay, by virtue of the change of nationality and of the treaties made. By the treaties between Great Britain and the United States adopted in the years 1782, 1783 and 1794, the right to the soil which had been previously in Great Britain passed definitely to the States, and since that time the paramount ownership of land which was vested in the Crown of England previous to the Revolution has since been in the people of the States, and has from time to time been made the subject of grant, through letters patent, to individuals and subject to alienation by such individuals.

Prior to the Revolution and the treaties above named, many grants had been made by the Crown to its subjects, and while the Dutch were in possession grants were made by the Dutch Government to its subjects. The Dutch grants were mostly confirmed by new grants or charters from the English Government. By the treaty of 1783, above noted, it was provided that there should be no further confiscation or prosecutions, by reason of the part taken by any person in the war; and that no person should, on that account, suffer any future loss or damage, either in person, liberty or property. By the treaty of 1794, above noted, it was mutually agreed that British or American subjects holding lands in each other's countries, should continue to hold them according to the tenure of their respective estates and titles therein; and might grant, sell, or devise the same to whom they pleased as if natives, and that neither they, nor their heirs or assigns, as respects said lands, and legal remedies incident thereto, should be regarded as aliens. Title to land obtained through grant from the Dutch Government or from the British Crown, to be good under the treaties above noted, must have been in the individuals mentioned therein at the time of the treaty, such treaty only providing for existing titles, it has been held.

The aborigines in this country, known as "Indians," were found to be in possession of much of the land, but the right to purchase or obtain good individual title thereto from such occupants seems never to have been recognized. As early as 1763, the British Crown, by proclamation, prohibited purchases of Indian lands, unless at a public assembly

of the Indians, and in the name of the Crown, and under the superintendence of the Colonial authorities.

The Indians have never been considered or treated as citizens, but as dependent tribes or political societies under domestic subjection, entitled to be governed by their own usages and rulers, but placed under the tutelary protection of the United States, and subject to government coercion as far as the public safety requires. They are also recognized to have a quasi national status; and their existence, rights and competence as distinct political bodies are recognized through various treaties made with them, both by the Colonial, Federal and State Governments. They have always been considered to have the right to enjoy the land which they occupy, until that right becomes extinguished by voluntary cessation on their part to the Government. They are excluded from the right of treating with any other power, the United States Government claiming, as against foreign countries, the exclusive right to extinguish the Indian title by purchase or conquest from them.

The ultimate fee of the land becoming, on discovery and conquest, as before stated in this chapter, vested in the Crown, or its successors, the Indians could not convey a complete title nor one paramount to the Crown or State, a purchaser from the Indians acquiring only an Indian title, but the Crown or its successors could convey the land, subject, however to the Indian possession.

It will be seen that individual title to land in this country came from the Government by grant to the several subjects, and from such original grantees