
    In the Matter of the Application of The City of New York, Respondent, Acting by and through the Board of Docks, Relative to Acquiring Right and Title to and Possession of the Wharfage Rights, etc., Appurtenant to Pier Old No. 15, East River, and All Right, Title and Interest in and to Said Pier or Any Portion Thereof, Not Now Owned by the City of New York, to Be Taken for the Improvement of the Water Front of the City of New York, on the East River, at or near Wall Street, Pursuant to the Plan Heretofore Adopted by the Said Board of Docks, and Approved by the Commissioners of the Sinking Fund. Augustus Newbold Morris, as Trustee of Eleanor C. Morris, and Others, Appellants.
    
      Erection of a shed on a pier in New York city—the consent thereto of the department of docks is irrevocable—prior to 1875 such erection was unlawful — condemnation of a pier with a shed—-the award should include the value of the right to erect a shed.
    
    Prior to the enactment of chapter 249 of the Laws of 1875, the erection outside the bulkhead line of the city of New York of any structures except piers and bridges connecting with the streets was unlawful.
    A license to erect a shed upon,a pier in the city of New York, granted pursuant to chapter 249 of the Laws of 1875, providing that, “it shall be lawful” for the owners, or lessees with the consent of the lessor, of a pier or bulkhead in the city of New York, “to erect and maintain, upon such pier or bulk-head, sheds for the protection of property so received or discharged; provided they shall have obtained from the department of docks, in said city, a license or authority to erect or maintain the same, and- subject to the conditions and restrictions contained in such license or authority,” and that “all sheds or structures heretofore erected or maintained upon any wharf or pier in the city of New York, under any license or permit granted by the department of docks in said.city, are hereby declared to be lawful structures subject to the terms and conditions of the license or permit authorizing the same,” which license does not reserve to the city authorities any right to revoke it, is irrevocable.
    A provision in the license that it should .not “ prejudice any right, title or interest of the city to the said pier or to any structures legally erected or that may be legally erected'thereon, including the said shed,” is intended to prevent the license from being construed as a relinquishment of any right or title of the city in and to the pier, and not as a reservation to theicity of the right to revoke the license.
    If, after the construction of the shed pursuant to the license, the city condemns the pier for the public use, the owner is entitled to receive the value of the pier with the right to erect a shed thereon as an appurtenance thereto.
    McLau&hlih, 3"., dissented.
    Appeal by Augustus Newbold Morris, as trustee of Eleanor C.. Morris, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1903, confirming the report of the commissioners of estimate and assessment appointed in the above-entitled proceeding.
    
      Truman H. Baldwin, for the appellants.
    
      Theodore Connoly, for the respondent.
   Ingraham, J.:

This proceeding was to condemn for public; use a piece of real property, known as the westerly half of pier 15 on the East river. The commissioners reported' that they had estimated this pier as a lawfully shedded pier, but' not entitled to be maintained as such perpetually; that the authority for the shedding of the pier was a license revocable by the lawfully constituted authorities of the city of New York; that the city of New York on taking proceedings to acquire title to the wharfage rights, terms, easements and emoltimqnts appurtenant to Pier Old No. 15, East river, not now owned by the city of New York, could not be held or required to pay for a license to shed the pier granted by themselves without compensation; but that they should-pay for the structural value of the shed erected on said pier.. To this report the property owners filed objections, upon the ground that the commissioners were bound to estimate the pier as one which the owners had a' right to maintain as a shedded pier.

It appears by the record that, if the owners of the pier had a legal right to construct a shed or other structure, the commissioners adopted an erroneous method, and the owners of the property were ■entitled to have it sent back to them to have a correct estimate of the value of the property made. The city of New York has taken property of these appellants without their consent. For that property the owners are entitled to be paid its fair market value, and if they had a right to maintain a shed upon the pier which the city could not take away, they were entitled to have an award based upon the ownership of a pier upon which they had a right to maintain a shed. The question, therefore, is whether the pier was one upon which the owners had a right to maintain a shed.

According to the testimony of the appellants’ witnesses, the pier with the shedding right was worth $40,000 more than without that right; and, according to the City’s testimony, the difference was $34,000. It appeared from the report of the commissioners that pursuant to the provisions of section 823 of the charter of the city of New York (Laws of 1897, chap. 378), the fee of this property vested in the city of New York on the 3d day of November, 1900. It also appeared by the evidence that this pier had been owned by these appellants and their ancestors for upwards of 100 years, and was, on the 10th of March, 1886, leased to William P. Clyde & Co., who were also the lessees from the city of New York of the easterly half of the pier; that on October 6, 1887, the dock department, pursuant tó the provisions of chapter 435 of the Laws of 1883 (amdg. Laws of 1875, chap. 249, § 3), granted permission to W. P. Clyde & Co., occupants of the southerly or westerly half of pier 15, East river, to erect and maintain a shed on said pier for the discharge and reception of merchandise in transit from and to vessels lying thereat, provided that the consent in writing of the parties (or their authorized representatives) claiming to own a half undivided interest in the premises be obtained and filed in this Department ; ” that the shed was to be constructed and maintained in conformity with plans and specifications to be approved by the board and in accordance with the requirements of the fire laws of the city of New York; “ And provided that so much of the shed so constructed and maintained as covers the northerly one-half part of the said pier shall become .the property of the City of New York, upon the expiration or sooner termination of the lease before mentioned, of the southerly side of said pier,” the northerly half of the pier - being the property of the city. It was further provided that “ this resolution shall not prejudice any right, title or interest of the city to the said pier or to any structures legally erected or that may be legally erected thereon, including the said shed.”

This resolution haying been passed by the dock department, the-appellants or their lessees erected a shed upon such pier, which has-been maintained by them to the time that the property vested in the city in this proceeding. Prior to the year 1875 the erection of any structures, except piers and bridges connecting them with the streets,, outside of the bulkhead line, or line of solid filling, was forbidden by law. (See Kingsland v. Mayor, 110 N. Y. 569, 577.) It was. there held that a license granted by the city before the act of 1875 to érect such a 'structure was unlawful, or, if lawful, was merely a-license and revocable in its nature, a privilege which the city might withdraw any moment and which it was its duty to withdraw. In 1875 chapter 249 of the laws of that year was passed. Section 1 of that statute provided as follows: Whenever any person, company or corporation, engaged in the business of steam transportation shall be the owner or lessee of- any pier or bulk-head in the city of New York, and shall use and employ the same for the purpose of regularly .receiving and discharging cargo thereat, it shall be lawful for such, owner or for such lessee, with the consent of the lessor, to erect and maintain, upon such pier 0,r bulk-head, sheds for the protection of property so received or discharged; provided, they shall have obtained from the department of docks, in said city, a license or authority to erect or maintain the same, and subject to. the conditions and restrictions contained in such license or authority. All sheds or structures heretofore erected or maintained upon any wharf or pier in the city of New York, under any license or permit granted by the department of docks in said city, are hereby declared to b,e= lawful structures subject to the terms and conditions of the license- or permit authorizing the same.” Section 3.of this act was amended by chapter 435 of 'the Laws of 1883, but the amendment is not material upon this question.

The appellants were the owners of the pier and entitled to its-unrestricted use, and to erpct such buildings and structures upon it,. subject, however, to the power of the Legislature to make reasonable rules and regulations for its use in connection with the commerce of the port of New York. In the absence of any legislative restriction I presume there can be no question but that they would have the right to erect a shed upon the pier for the protection of merchandise to be loaded upon or discharged from vessels at the pier. Whatever restrictions the Legislature had imposed upon the structures to be placed upon this pier were removed by the act of 1875, to which attention has been called, and it was declared by section 1 of that act that it should be lawful for the owners, or for the lessees with the consent of the owners, to erect and maintain upon such pier or bulkhead sheds for the protection of property received or discharged. If the act had stopped there, there could be no question but that -the appellants would have owned a pier upon which they had a legal right to erect a shed or other structure authorized by the act; but before 'this authority could become absolute the Legislature required that “a license or authority” must'be obtained from the department of docks to erect or maintain the. shed; but when once that license or authority was granted the shed, became a" lawful structure, and it was then lawful for the owners, or for the lessees, with the consent of the lessors, to erect and maintain ” upon the pier or bulkhead sheds for the protection .of property so received or discharged. There being no authority given to the dock department to revoke such license or authority when once given, when that authority was given the structure became by the force of the legislative enactment a lawful structure. It seems te me that the public authorities had no power to revoke the authority to erect a shed, and when the city attempted to condemn it in this, proceeding they were bound to pay to the appellants the value of the pier with this right to shed the pier as an appurtenance to it. The department of docks have never attempted to revoke this authority or to make this shed an illegal structure. When the city of New York, exercising the power of eminent domain, commenced this proceeding to acquire title to the property, it was a property upon which these appellants were entitled to maintain this, structure; and it was the value of that pier, with the right to maintain this structure on the 3d day of November, 1900, to which these appellants were entitled.

No case is cited which has construed this .statute of 1875, but it seems to me that it would be a clear violation of the right conferred upon the owners of these piers by the statute., xo say that, although the city had given its authority to erect a structure upon the pier, and the owners, in reliance upon the right conferred by the statute, with the consent of. the city, had erected siich a structure, the city could, the next day, revoke the authority and make the structure an illegal one, which, by the' express provisions of the statute, on obtaining the authority from the city, became a legal structure which the owners wére authorized to maintain. The provision in the license or authority granted by the dock department that it should not “ prejudice any right, title or interest of the city to the said pier or to any structures legally erécted or that may be legally erected thereon, including the said 'shed,” did not affect the right of the appellants acquired by the provisions of the act after the city had authorized the erection of the shed. This provision was evidently for the purpose of preventing the act of the department of docks from being construed as a relinquishment of any right or title of the city in and to the pier. There was nothing in it that reserved the right of the city to subsequently revoke the authority that was given, and no property of the city was used in any way in the construction of. this shed. The city has not authorized these appellants to erect a structure on the city property, but was. exercising an authority conferred upon them by the Legislature to determine whether, the use by the appellants of their own property was proper and consistent with the general commercial interests of the city; and while the authority given by the dock department was not to prejudice any right, title, or interest of the city to. the pier, so long as the city had no right, title or interest to it that proviso had no effect. There was nothing in the resolution that reserved ■ the right of the city to revoke the authority once given, and that authority having been given the right to erect and maintain that shed vested, by virtue of. the statute, in the owners of the pier.

• There is some question raised as to the effect of the plan made by the city for acquiring the docks or piers of private owners under chapter 574 of the Laws of 1871 (amdg. Laws of 1870, chap. 137, § 99), but I can-find no evidence in the record! to show that the city filed such plan or proceeding under the provisions of that act, and there was nothing that authorized the city to appropriate the property of these appellants without paying them the fair value of the property in the condition and subject to the rights of ownership that existed at the time the property was taken. The dock department by this permit gave away no right of the city, authorized no use of the city’s property, but simply authorized or made legal a right of these appellants to use their own property in a way authorized by the Legislature, and I do not believe that, that authority once having been, given, the city could revoke it and make what the Legislature had declared to be a legal structure on the pier illegal, or take away from these appellants the right to erect and maintain that shed, which by the express provisions of the act of the Legislature was given to them. ' •

I think the order appealed from should be reversed, with costs, and the case sent back to the commissioners to make an award in accordance with the views herein expressed.

O’Brien, Hatch and Laughlin, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

I am unable to agree with a majority of the court as to the disposition to be made of this appeal. The appellants owned an undivided one-half of pier 15, East river, which the city has taken in condemnation proceedings and for which an award of $100,000 has been made. They claim that the award is inadequate, inasmuch as they had a perpetual right to shed the pier, and the testimony on their part before the commissioners appointed to ascertain the value of the pier taken showed that if they had such right it was worth $140,000, while that on the part of the city valued it at $134,000. The sole question presented, therefore, by the appeal is whether the appellants did, in fact, have a perpetual right to shed the pier. If they did then the order confirming the report of the commissioners fixing the damage should be reversed and the matter sent back for a further hearing, otherwise it should be affirmed. No complaint is made but what a sufficient award was made for the shed itself, the complaint being directed simply to the right to perpetually maintain the same.

The shed in question Was erected, with the consent of the appellants by their lessee, William P. Clyde & Co., under a license granted to it by the department of docks on the 6th of October, 1887. That license was granted under authority conferred upon the dock department 'by chapter 249 of the Laws of 1875, known as the Shedding Act,” as amended by chapter 435 of the Laws of 1883. This act authorized the department of docks to grant licenses to the owners, or lessees with the consent of the owners, of piers or bulkheads in the city of New York to erect and maintain upon them sheds for the protection of property subject .to the conditions and restrictions contained therein. Prior to the passage of this act there was no authority to give such permits and all structures erected upon piers prior to that time were unlawful. (People v. Mallory, 46 How. Pr. 281; People v. B. & O. R. R. Co., 117 N. Y. 150.) The license to Clyde & Co., which was in the form of a resolution, authorized it to erect and maintain a shed on this pier, but a provision was inserted therein to the effect that the license should not “ prejudice any right, title or interest of the city to the said pier of to any structures legally erected or that may be legally erected thereon, including the said shed.” The legal effect of a license of this character was passed upon in Kingsland v. Mayor (45 Hun, 198). It is true ,the shed there was erected outside the bulkhead line, and while the court held there was no power vested in the dock department under the Shedding Act to give such permits, nevertheless what was said as to what the dock department could do under that act is apjdicable here. At General Term Mr. Justice Daniels, delivering the opinion, referring to this subject, said: “This statute * * * provided for nothing beyond a license or authority to erect or maintain the sheds. It did not provide for vesting in the person to whom the privilege should be given any right to maintain the platform or shed for any particular period of time. But what was provided for was a license or authority'which it was declared should be subject to the conditions and restrictions contained in such license or authority.’ * * * It is manifest, therefore, that no property right Was designed to be or was in fact conferred ór created by this resolution. It was a privilege granted subject to the existing laws providing for this improvement of the water front of the city and made dependent by the resolution itself upon the pleasure of the board adopting it. And the right so to terminate it was exercised when this improvement was made in the year 1880. And in ending it in that manner no more was done than had the sanction of the law, as well as the condition on which the resolution was dependent.” This decision was affirmed by the Court of Appeals (Kingsland v. Mayor, 110 N. Y. 569), Judge Finch delivering the opinion, during the course of which he said : “ In 1875 an act was passed commonly known as ‘ the Shedding Act,’ which authorized the department of docks to grant permits for the maintenance and construction of sheds upon the piers or bulkheads, but these permissions were revocable in their nature without consideration and expressly subject to the rules and regulations of the department of docks to whose discretion the matter was confided.”

In 1871 (Chap. 574, amdg. Laws of 1870, chap. 137, § 99) the city was authorized to change docks and piers and the wharves of private owners were to be purchased by agreement or taken in the ordinary manner by proceedings under the right of eminent- domain. The act vested in the department of docks authority over the whole system, and contemplated their being subsequently acquired by the city. The license in question having been granted subsequent to the passage of that act was taken subject to it, but to remove any doubt as to the preservation of the city’s rights, a provision was inserted .that the granting of it should not prejudice any right, title or interest of the city to the said pier or to any structure legally erected or that may be legally erected thereon, including the said shed, and in this connection it must be' borne in. mind that the city never received any consideration for the permit, nor does it upon its face purport to be perpetual. The license was revocable at the pleasure of the city and it was revoked by institution of the proceedings by which the city obtained the title.

I am also of the opinion that the dock department does not now, and did not at the time the license in question was given, have power to grant a perpetual one. There is no statute specially conferring such power, and an officer or department of the city government ought not to be permitted to give away such valuable rights without the sanction of the Legislature, expressed in unmistakable language.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Order reversed, with costs, and case remitted to commissioners as stated in opinion.  