2. INDICTMENT AND INFORMATION (§ 131*)-JOINDER OF COUNTS-ACTS CONSTITUTING DIFFERENT Offenses.

Where the grand jury had jurisdiction of a felony charged, its jurisdiction was not affected by the fact that the same acts also constituted a misdemeanor; and, under Code Cr. Proc. § 279, it could charge the different crimes in different counts of the indictment.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. 424; Dec. Dig. § 131.*]

3. CRIMINAL LAW (§ 93*)- JURISDICTION OFFENSE ARISING OUT OF MAJOR CRIME.

Where a court has jurisdiction of a major crime charged, its jurisdiction extends to any crime arising out of the same facts; and hence, having jurisdiction of grand larceny in the second degree, charged in one count of an indictment, it would have jurisdiction of a misdemeanor charged in another count, based upon willfully and unlawfully taking and carrying away the same property charged to have been stolen in the first

count.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 137-166; Dec. Dig. § 93.*]

4. HABEAS CORPUS (§ 17*)—AUTHORITY For Restraint.

The authority of a prison keeper for holding a convict is the certified copy of the entry of the judgment of conviction.

[Ed. Note. For other cases, see Habeas Corpus, Cent. Dig. § 13; Dec. Dig. § 17.*]

Appeal from Special Term, Nassau County.

Habeas corpus and certiorari by the People, on the relation of George W. Bedell, against Joseph H. Foster, Sheriff of Nassau County. Judgment of dismissal, and relator appeals. Affirmed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

H. Willard Griffiths, for appellant.
Franklin A. Coles, for respondent.

RICH, J. Appellant is detained in the penitentiary of the county of Nassau, under a sentence for one year, upon a judgment of conviction for grand larceny in the second degree. He avers that he is imprisoned illegally, in that the sentence pronounced against him is contrary to law, that the court was without jurisdiction to try him, and that the warrant or order under which he is imprisoned does not conform to the judgment of conviction.

The first contention is based upon the assumption that it was obligatory upon the court to sentence him to imprisonment in a state prison under the provisions of section 687a of the Penal Code. This assumption is erroneous. Under the provisions of section 699 of the Penal Code authority is vested in the court, when the term of imprisonment of a male convict for felony is fixed at one year or less, to direct imprisonment in a county penitentiary, instead of in a state prison, and section 687a applies only to a convict "sentenced to a state prison."

The contention of want of jurisdiction is predicated upon the fact that the indictment contains two counts. The first charges grand larceny in the second degree. The second, after averring the same facts,

"For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

charges the crime of willfully and unlawfully taking and carrying away the same property which the first count charged him with having stolen. The crime charged in the first count is a felony; in the second, a misdemeanor. It is argued that, in the absence of a certificate under the provisions of section 57 of the Code of Criminal Procedure, the Supreme Court was without jurisdiction to inquire into the matter, and that the jurisdiction of the grand jury was limited by that of the court of which it is an appendage. This contention is without merit. The grand jury had jurisdiction of the felony charged, notwithstanding the same facts might constitute an additional and different crime. Section 279, Code Cr. Proc. Having jurisdiction of the major crime, the court had jurisdiction of any crime arising out of the same facts.

Under the third assignment of error it is contended that the minutes of the trial court show that the defendant was convicted of both crimes charged in the indictment, while the certificate of conviction recites grand larceny in the second degree. It is sufficient answer to this contention to say that this does not appear by the record before us. The authority for holding the defendant is the certified copy of the entry of the judgment of conviction. People ex rel. Trainor v. Baker, 89 N. Y. 466; People ex rel. Dauchy v. Pitts, 118 App. Div. 457, 103 N. Y. Supp. 258.

The order must be affirmed.

Order affirmed, with $10 costs and disbursements. All concur.

SHINNECOCK HILLS & PECONIC BAY REALTY CO. v. ALDRICH et al. (Supreme Court, Appellate Division, Second Department. April 30, 1909.) 1. DEEDS (§ 140*)-CONSTRUCTION-EXCEPTIONS.

If an exception in a deed is susceptible of more than one meaning, it should be construed most favorably to the grantee, and, if it is so vague as to identify nothing, it excepts nothing.

[Ed. Note. For other cases, see Deeds, Dec. Dig. § 140.*]

2. DEEDS (§ 93*)-ConstrUCTION-INTENTION-SITUATION OF PARTIES.

Deeds should be construed the same as contracts, in that the court, so far as it can, will put itself in the position of the parties and ascertain their intention from the language, context, and surrounding circumstances. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 231, 232; Dec. Dig. § 93.*]

3. EVIDENCE (§ 536*)-EXPERT TESTIMONY COMPETENCY.

One who had made a special study of, and had compiled, deciphered and published, ancient town records, was competent to testify as an expert as to allotments made of marsh lands in 1654 and subsequently. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 536.*]

4. TRESPASS (§ 46*)-ACTIONS-SUFFICIENCY OF EVIDENCE.

In trespass, where plaintiff claimed through a deed excepting certain lands, evidence held to show that the parties to the deed understood that the land claimed by plaintiff was a part of the land theretofore allotted and then owned by others.

[Ed. Note. For other cases, see Trespass, Dec. Dig. § 46.*]

5. ADVERSE POSSESSION (§ 104*)-GRANT-PRESUMPTION.

A grant is presumed from acts of ownership exercised from the time of the memory of man.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 595602; Dec. Dig. § 104.*]

6. DEEDS (§ 140*)-EXCEPTIONS-CONSTRUCTION.

Where a deed excepted from the land granted all such meadows as had theretofore been allotted to and were then owned by particular individuals, one claiming under the exception must show both an allotment to, and legal ownership by, such individuals.

[Ed. Note. For other cases, see Deeds, Dec. Dig. § 140.*]

7. DEEDS (§ 140*)-EXCEPTIONS-CONSTRUCTION-CERTAINTY.

-

- "CULTIVATE” — “IM

A description in a deed included the land in controversy, but excepted all marshes and meadows within the boundaries theretofore allotted to, and then owned by individuals, and stated that it was the intention not to convey the meadows or marshes theretofore mentioned. The town records showed an allotment of a division of meadows in 1654, which included the premises in dispute, and subsequent sales thereof by individual owners, and that such owners exercised acts of ownership long enough to create the presumption of a grant, and the parties to the deed understood that the excepted land was a part of the meadows theretofore allotted and owned by individuals. Held, in view of the circumstances. that the exception in the deed was not void for indefiniteness, but sufficiently identified the lands excepted, which included those in controversy. [Ed. Note. For other cases, see Deeds, Dec. Dig. § 140.*] 8. ADVERSE POSSESSION (§ 21*) - ACTS OF OWNERSHIP PROVED. Code Civ. Proc. § 370, provides that for the purpose of constituting adverse possession by one claiming title founded upon a written instrument, etc., land is deemed to have been possessed, where it has been usually cultivated or improved. Defendants and their predecessors had openly and notoriously, for a sufficient length of time to create the presumption of a grant, cut and removed for purposes of husbandry the hay which grew on salt meadow land; that being the only purpose for which the land could be used. Held, that as to "cultivate" meant to improve the product of the earth by manual industry, and "improved" land generally meant such as had been reclaimed and was used for husbandry, whether for tillage, meadow, or pasture, the yearly cutting and removal of the grass was such an act of ownership as to constitute a technical adverse possession within the statute.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 109, 110; Dec. Dig. § 21.*

For other definitions, see Words and Phrases, vol. 2, p. 1781; vol. 4, pp. 3450-3451.]

9. ADVERSE POSSESSION (§ 13*)—ACTS OF OWNERship-SuffICIENCY.

Acts of ownership exercised for a sufficient length of time to create a presumption of a valid grant constitutes a technical adverse possession. [Ed. Note. For other cases, see Adverse Possession, Dec. Dig. § 13.*]

Appeal from Trial Term, Suffolk County.

Action by the Shinnecock Hills & Peconic Bay Realty Company. against Frank E. Aldrich and another. From a judgment for defendants, and an order denying a motion for a new trial, plaintiff appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

J. Edward Swanstrom (Conrad S. Keyes, on the brief), for appellant.

Timothy M. Griffing (Thomas Young, on the brief), for respond

ents.

MILLER, J. This action was brought to enjoin a trespass, but it was tried upon the stipulation of the parties as an action at law for damages. At the close of the evidence both sides moved for the direction of a verdict, and the defendant's motion was granted. The dispute is over the title of a strip of salt meadow and beach on the southerly side of Cold Spring Harbor in the town of Southampton, Suffolk county. The plaintiff is the owner of the uplands adjoining the strip in dispute. The plaintiff derives title from a deed made March 21, 1861, by the "trustees of the proprietors of the common and undivided lands and marshes or meadows, in the town of Southampton," to Lewis Scott and others. It is conceded that the description in that deed includes the premises in dispute, but the deed contained an exception in the following words:

"And excepting from this conveyance all such meadows and marshes within the aforesaid boundaries as have heretofore been allotted to and are now owned by particular individuals in severalty or otherwise and also further excepting from this conveyance all land covered with water where the tide ebbs and flows within said bounds. It being the intention of this conveyance and it shall be so construed as to convey said track of land subject to all legal highways and roads as aforesaid and in no sense to convey the meadows or marshes heretofore allotted to or the land covered with water where the tide ebbs and flows within said bounds according to the exception hereinbefore contained."

The plaintiff also claims under a quitclaim deed of November 17, 1881, by the "trustees of the proprietors of the undivided lands of the town of Southampton, county of Suffolk, and state of New York," conveying all the right, title, and interest of the grantors to the undivided lands of a described portion of what was known as "The Town Purchase," which refers to an Indian deed made December 13, 1640. The defendants claim that the premises in dispute were a part of what was known as "The Seaponack Division," which was allotted in 1654; and, while they are unable to trace their title to any of the allottees, they show a paper title, to wit, a warranty deed from the heirs of Sylvanus Raynor, deceased, to Franklin Jagger, and the will of the latter devising his residuary estate to them.

The plaintiff claims that the exception in the Scott deed is void for indefiniteness. It is true that an exception in a deed must be taken most favorably to the grantee. Jackson v. Hudson, 3 Johns. 375, 3 Am. Dec. 500; Blackman v. Striker, 142 N. Y. 555, 37 N. E. 484. If the language used is susceptible of more than one meaning, the grantee is entitled to the one most favorable to him; and, if it is so vague as to identify nothing, nothing will be excepted. But deeds have to be construed the same as other contracts. The court, so far as it can, will put itself in the position of the parties and ascertain their intention from the words used, their context, and the surrounding circumstances. Blackman v. Striker, supra; Clark v. Devoe, 124 N.

N. Y. 394, 15 N. E. 615; Myers v. Bell Telephone Co., 83 App. Div. 623, 82 N. Y. Supp. 83. The contention of the plaintiff is that the exception is as indefinite as though for the phrase, "such meadowlands within the aforesaid boundaries as have heretofore been allotted and are now owned by particular individuals," were substituted the words, "excepting some of the meadowlands within the aforesaid premises"; but those two expressions have only to be put in juxtaposition to perceive the fallacy of that argument. The meadows and marshes, theretofore allotted, so far as anything appearing on the face of the instrument, were capable of being identified; and the question is, What did the parties mean by the expression used? The plaintiff's contention that the exception was merely put in as a saving clause to guard against possibilities is plainly refuted by the instrument. The exception is emphasized by the statement of the intention of the parties; and the expression "excepting as aforesaid" is subsequently used at least four times.

The records of the town of Southampton contain the entry of what a witness who had made a special study of the old records of the town said purported to be an allotment of the "Seaponack Division" made in February, 1654. They also contain entries purporting to have been made during the seventeenth century, subsequent to 1654, of sales and leases by individual owners of salt meadows in the Seaponack division, some of them described as being on Cold Spring Pond. Said witness testified that the Seaponack division included the meadows in dispute, and that there was no other division of the town to which the name could refer. That witness had been one of the trustees of the proprietors and the town clerk of the town for several years succeeding 1860. He had made a special study of, and had compiled, deciphered, and published, the old records of the town. Those records required explanation from one having special knowledge of the subject, and the witness qualified as an expert; indeed, his competence was not questioned. The record evidence then tends to show that there was an allotment of the division of salt meadows, including those in dispute, to individual owners whose ownership continued to be unquestioned after the Andross and Dongan patents. One of the trustees of the proprietors testified that in 1861, consequently about the time of the Scott deed, an arrangement was made between the trustees who owned the uplands and the owners of the meadows, whereby the latter were to have certain rights in the uplands in return for allowing the cattle and sheep pastured upon the hills to go upon the meadows. At that time there was a fence between the uplands and the meadow-how long it had existed did not appear-but there is now a well-defined ditch where it existed. The three other sides of the meadow in dispute are marked by natural boundaries. There is no pretense that the proprietors made any claim to the ownership of this meadow at the time of the Scott deed. On the contrary, the evidence is undisputed that, as far back as any one can remember, the claim of ownership of the defendants and their predecessors has been open, notorious, and unquestioned, and that they or their lessees have annually mowed the meadow and carried away the hay.