44 ^ 



REPORT OF THE COMMISSIONERS OF 



that the title of the State to said lands can be questioned or tried in an action against 

 said Comptroller, and there is no legal authority for the commencement of such an 

 action against the Comptroller for the purpose -of determining the title of the State to 

 wild, vacant and forests 'lands; that a judgment against the Comptroller would not 

 disturb or affect the title of the State to the lands described in the complaint." 



The final determination of this case will be of vast importance; because there are 

 suits now pending involving substantially the same question and affecting some sixty- 

 three thousand acres of land in the Forest Preserve. 



The case of Smith M. Weed, et. al., against James A. Roberts, as Comptroller, and 

 Barnet H. Davis and others, as Commissioners of Fisheries, Game and Forests, was an 

 injunction suit in the Supreme Court, Franklin county, to restrain the Comptroller 

 from acting upon, and the Commissioners of Fisheries, Game and Forests from 

 prosecuting, an application to the Comptroller, pursuant to chapter 392, of the Laws 

 of 1897, to set aside certain cancellations, made by a former Comptroller, of tax sales 

 to the State in 1877, 1881 and 1885, of 6,280 acres of land in the southeast quarter of 

 Township 23, Great Tract 1 of Macomb's Purchase, in Franklin county, adjoining 

 Upper Saranac Lake. These cancellations were made on April 11, 1892, on the 

 application- of a person other than the purchaser at the tax sales, and without authority 

 of statute. The application for a temporary injunction was argued before the Hon. 

 Chester B. McLaughlin, J. S. C, who handed down his decision on December 24, 

 1897, denying the application upon the following grounds: 



"First: It does not appear that the application for cancellation will be prejudicial 

 to plaintiff's rights. 



" Second : Chapter 392 of the Laws of 1897 is not unconstitutional. 



" Third: The Comptroller's decision, if adverse to the plaintiff, may be reviewed 

 by certiorari. 



''Fourth: Plaintiffs have an adequate remedy at law. If the tax sale is invalid, 

 plaintiff's title is not affected. They may keep and defend their possessions, or if put 

 out of possession, may regain it by ejectment. 



" Finally, a court of equity will not entertain a suit to prevent a cloud upon title, 

 unless it be made to appear that there was a determination on the part of the 

 defendants to create the cloud, and the danger must not be merely speculative, 

 but be real." 



In addition to these cases there were several others which have been decided in 

 the Supreme Court, and the opinions of the court therein are also submitted herewith: 



