The opinion
Carswell, J. (concurring).
When this case was here before I did not concur in the opinion of the court. I merely concurred in the result, which is not controlling on the question now presented. I concur in the opinion of Mr. Justice Close, with these observations:
(a) The basic conclusion of Special Term is reinforced by the rule of strict construction applicable here. A patent or a grant from a sovereign to a subject is to be construed strictly in favor of the Crown. A different rule prevails where the grant is to a town or a political subdivision. (People v. Foote, 242 App. Div. 162 ; 273 N. Y. 629 ; certiorari denied, 302 U. S. 760 .) The rule in respect to grants between private parties is that ambiguity or doubt as to meaning is to be resolved in favor of the grantee. (2 Tiffany, Real Property [2d ed.], § 437, p. 1618; Allen v. Trustees of Great Neck Free Church, 240 App. Div. 206 ; affd., 265 N. Y. 570 .) Likewise a grant by a sovereign to a subject or private person based upon a real or adequate consideration requires ambiguity to be resolved in favor of the grantee.
(b) That basic conclusion is further reinforced and buttressed by the rule of repose (Beers v. Hotchkiss, 256 N. Y. 41, 48 ; People v. Foote, supra) applicable to the resolving of disputes as to interpretations of old grants, that “ courts do not look at records with over-technical eyes after the- healing acquiescence ” of centuries. The “ rule of repose ” is not in conflict with the principle that there can be no abandonment of title — in fact it is wholly compatible with that principle. The rule here acts upon and presupposes a situation where contemporaneous or early interpretations of original grants resulted in a course of action or inaction, equivalent to a practical construction of the grant, which recognizes that there never was title in respect of the parcel in controversy in the one ■under whom a claim of title is belatedly asserted. This is a far cry from abandonment of title. It is a mere recognition that there *205 never was any title to abandon. The existence of the principle that there can be no abandonment of title does not militate against the existence of the “ rule of repose ” which has long been recognized. (Beers v. Hotchkiss, supra; People v. Foote, supra.)