
    Joseph Jenks and Others, Respondents, v. John F. Miller and J. Henry Holden, Appellants.
    
      Injunction — extension of a pier into the Hudson', river '— when not enjoined on th& complaint of an adjoining pies' owner — relative rights of littoral owners.
    
    In an action brought to enjoin the defendants from extending a pier into the Hudson river, it was shown that the plaintiffs owned ■ a pier running into the. Hudson river, which was next south of that, :of the defendants, and was separated from it by a slip, into which the. plaintiffs were in the habit of running and tying up, their freight and passenger steamboat, which was about 140 feet in length. Both piers extended the same distance into the river.
    
      The plaintiffs claimed that the proposed extension of the defendants’ pier would make it much more difficult for them to get their boat into the. slip.
    The assignors of the plaintiffs had a grant of lands under water, issued in 1874, for the purposes of commerce only. The dock of the defendants was built about 1876, and in 1893 they obtained a further grant “for the beneficial enjoyment,” which extended about seventy-five feet further into the river than the present pier. Both docks were used very little by any other persons than the plaintiffs and the defendants, the water in the neighborborhood of these docks being quite shoal.
    
      Held, that as it did not appear that the proposed extension of the defendants’ pier would substantially obstruct or impair navigation, or violate the River and Harbor Act.(25 U. S. Stat. at Large, 425; amended by 26 U. S. Stat. at Large, 454, § 7), the court should not enjoin the defendants from constructing such extension to their pier — ce'rtainly not until the Secretary of War took some action under the provisions of that act.
    Relative rights of adjoining littoral owners, considered.
    Appeal by the. defendants, John F. Miller and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 14th. day of July, 1896,-upon the decision of the court rendered after a trial at the Westchester Special Term, enjoining the defendants from erecting a pier or projection extending out from the end of the defendants’ pier at Sing Sing, and required them to remove the piles already driven in front of the present pier.
    
      Smith Lent and John Gibney, for the appellants.
    
      ■Wel&on Zdbriskie, for the respondents.
   Goodrich, P. J.:

The defendants own a pier at the foot of Main street, Sing Sing, extending into the Hudson river. It is fifty-eight feet wide. South of defendants’ pier, also at the 'foot of Main street, is a pier sixty feet wide, owned by the plaintiffs, and sejiarated from it by a slip thirty-two feet wide. Both piers extend the same distance into the river.

There is also a slip below the plaintiffs’ pier thirty-two feet wide, and below that a pier also owned by the plaintiffs, which is a hundred feet shorter than the plaintiffs’ upper pier, leaving a large space of clear water. The plaintiffs’ boat is accustomed to land and tie up at night in this slip on the southerly side of their upper pier.

Outside of 'tlie piers and extending to the main channel of thfe river, a distance of three-fifths of a mile, are fiats, the water upon which is abouit seven feet deep, and this water is ■ infrequently used by vessels.

Just north of the defendants’ pier is a creek which empties into the river, and, being subject to violent freshets, deposits large quantities of sand on .the fiats and in front of the docks. It is- alleged in the moving affidavits, and declared by the learned judge in his opinion at Special Term, that one object of the addition is to prevent this deposit, and the evidence shows that the addition would do much to prevent it, especially in front of the defendants’ dock, where it shoals the water so as to hinder the moorings of coal boats and barges at the end of their pier, where there is at present only three or four feet of water.

The defendants, as shown by the diagrams in- evidence, began to . build out into the river an addition to their dock, forty feet in length, the northerly line being an extension of the northerly line ' of the pier, the addition to be about fifteen feet narrower than the present pier. There is some evidence that tlie body of the proposed ‘ -dock is somewhat to the south of tlie place shown on the diagram, but the defendants would be concluded by their own maps from any other location if it • were needful to insert such a provision in the judgment.

The plaintiffs own, and' for about ten years have been running daily to their dock, a passenger and freight steamboat, and claim that in going up the river and in docking their steamboat it is sometimes necessary to lap the bow of their boat some five or.ten feet upon the outer or river end of the defendants’ pier, preparatory to warping the boat into its berth on the lower side of their own pier, and that the defendants’ ¡iroposed addition will, seriously interfere with, if not practically destroy, this beneficial use of their own pier, ■and prevent them from warping their boat into the slip, or from landing passengers and freight while moored at tlie end of their pier.

The boat is 140 feet in length, and the plaintiffs’ dock 60 feet in width, the' slip, between the two docks 32 feet, and the slip south of plaintiffs’ pier is 32 feet wide, with open water of 100 feet, and it is somewhat difficult to see why the boat -cannot he warped into its slip without lapping the defendants’ pier, as from the outer lower corner of their dock which, is the turning point of the operation, there is over 90 feet of water space for the how before it reaches the lower line of the defendants’ pier, considerably more than one-half the entire length of the boat. If the plaintiffs with a boat 140 feet-in length have the right to prevent the defendants building out their pier, there is no reason why they may not use a larger boat which would cover the whole front end of the defendants’ pier and thus prevent them from occupying the end of their pier, even when they needed to have their own boats moored there for loading and unloading.

The average depth of water at the lower end of the defendants’’ pier is only six feet at low water, while the boat draws about seven and one-half feet light, and something more when loaded. It is. difficult to see how the boat can use this water without grounding her bow in front of the defendants’ dock, except at, or nearly at high tide, the rise and fall of which is three and a half or four feet.

The plaintiffs sometimes land their boat at the end of their pier and unload from a gangplank at the after gangway. Ho reason is shown why they may not unload from the forward gangway, but even when they use the after gangway, the gangplank is ten or twelve feet from the lower line of their pier, and there does not seem to be any necessity for lapping the defendants’ dock, as the lower line of that dock is seventy-eight feet distant from the gangway,, about four-sevenths of the length of the boat.

The learned trial judge at Special Term states in his opinion that it would be very difficult at all times, and impossible many times, to bring the plaintiffs’ boat to her dock without running her bow about fifty feet in front of the dock of the defendants.” Ho such claim is made in the plaintiffs’ papers, and as this would bring the stern of the boat above the lower line of the plaintiffs’ dock, we are not able to agree with that part of the opinion.

As the addition laid out. on the diagram leaves a water space of fifteen feet above the lower line of the defendants’ dock, and as the plaintiffs only claim that they lap the defendants’ dock about ten feet, it is difficult, to see how the new structure will interfere with their landing. Hor does it appear why they may not make their landing in their own slip in an oblique direction, or from the north, with the bow heading down the river as is sometimes done.

The grant to the plaintiffs’ assignors of lands under water by the . Commissioners of the Land Office was issued in 1874, and was “for the purpose of promoting the commerce of our said State and for no other object or purpose,” and was conditioned upon the erection of a dock' within five years.' The dock appears to have been built in its present shape shortly after the issuing of the grant.

The original grant to the defendants or their grantors is not in evidence, but it appears .that their dock was built about 1876, and it may be assumed that they also had a grant. In 1893 the defendants obtained another grant “-for the beneficial enjoyment.” This grant extends about seventy-five feet beyond the end of the present docks.

There is a difference between these two classes of grants; that for purposes of commerce is limited upon the erection of a dock within the named period; that for the beneficial enjoyment contains no.' such provision arid is apparently perpetual and authorizes the construction of such dock out to the exterior line of the grant as is necessary to beneficial enjoyment.

When the plaintiffs’ dock was erected under their grant, it may be assumed that the grant of lands under water in front, of their upland' became perpetual, but I cannot see that the plaintiffs -acquired any exclusive right in the waters beyond a line running substantially at right angles to their own shore or to the exclusive navigation of any adjacent waters.

If any distinction is to be drawn between the grant to the ' "plaintiffs in 1873, and the grant to the defendants in 1893, it would •seem at least that the defendants’ grant was not inferior to that of 'the plaintiffs.

Both parties built their docks the same distance out into the river, -and thus acquired rights, but the defendants have now obtained an •additional grant under which they claim the right to build their proposed dock.

Knickerbocker Ice Oo. v. Shultz (116 N. Y. 382) was a case where •a grant had been given to the plaintiff’s assignor, who had erected a dock below high-water mark, and subsequently obtained a grant of the lands under water in front of his upland. Later the defendants -obtained a grant for beneficial enjoyment of lands under water in .front of their premises which lay to the south of the plaintiff’s dock.

The plaintiff had been in the habit of cutting ice in a cove south of its dock, and conveying it through a canal in the ice, and over the lands under water covered by the grant to defendants, upon which the defendants commenced the construction of a dyke, wholly upon their own lands, the erection of which would 'prevent the plaintiffs towing ice through its canal, and the court held . that the plaintiff acquired no more than the lands under water in front of its upland, the lateral limits of which were perpendicular to the shore, and that as the easement claimed on defendants’ lands could not be acquired by presumption, even assuming that defendants’ dyke constituted a purpresture or a nuisance, the plaintiff could not maintain an action for its abatement.

The plaintiffs contend that the act of Congress, familiarly known as the River and Harbor Act (25 U. S. Stat. at Large, 425; amd., 26 U. S. Stat. at Large, 454, § 7) prohibits, the erection of any pier, wharf, breakwater or structure in any navigable waters of the United States, where no harbor lines are established, in such a manner as to obstruct or impair navigation, commerce or anchorage of said waters, without permission of the Secretary of War. It is evident that the statute only prohibits the erection of a dyke where it obstructs or impairs navigation, and this is one of the questions óf fact which is presented' in the present action. And wé do not find testimony sufficient to hold that the proposed structure will obstruct or impair navigation.

In support of his contention the plaintiffs’ counsel cites the case of Grand Trunk R. Co. v. Backus (46 Fed. Rep. 211), decided in the United States Circuit Court, where Judge Jaoicson, in an action brought by an adjoining ferry company, enjoined the extension of a wharf twenty-five feet into the Detroit river, to a point where the depth of water was twenty-six feet, and Where it may be assumed that the largest vessels were using the waters and where the channel was comparatively narrow. This, however, presents a very different case from the present one, where the waters are seldom traversed, and then only by vessels of small capacity, and where it is shown that the proposed structure will be no obstruction to general navigation. One rule might well apply to the former, and another rule to the latter case, when the rights of the public are considered. It is not shown here that there is any considerable use of the waters; indeed, their use seems to "be confined chiefly to the vessels of the parties to this action.

Judge Jacksost also says that the building of - the proposed dock would prevent the crossing of navigable waters by the ferryboats in' entering and leaving their slip. This action differs so materially from the case at bar that it does not seem to assist our conclusion.

This court .at the present term, in the case of The City of Brooklyn v. Machay (13 App. Div. 105), following the case of Wetmore v. The Brooklyn Gas Light Co. (42 N. Y. 384) and Rumsey v. N. Y. & N. E. R. R. Co. (133 id. 79), held that the owner of the upland on a navigable stream had the right to construct a proper pier or wharf for his own use and that of the public, even though he had not obtained from the State a grant of the land under water. .We see no reason why the same rule does not equally pertain to the rights of the United States. It is not necessary for us to decide whether the Secretary of War could prevent the construction of the dock in question, but until action for that purpose is instituted no good reason is shown why the court should enjoin the construction of the dock in question, and thus prevent the defendants’ beneficial enjoyment of their property, ¡at the suit of, and for the benefit of the owners of

■ an adjacent piér, where the papers and evidence show that the interference with the landing of their boat is shadowy and unsubstantial, even if the exclusive use, as- claimed, found any authority in law.

The judgment is reversed, with costs to abide event.

All concurred.

CtJLLBír, J. (concurring),:

Under the-English law a littoral owner had a right of access to the adjacent waters, the same as to a highway, but it was only a right of - access, and he could erect no pier, wharf or other structure in the water without the consent of the crown. (Gould on Waters, § 167 ; Black’s Pom. Wat. Rights, § 250.) In this country it has generally been held that the upland owner has the additional right of constructing a proper pier or landing for the use of himself and the public, subject to the general regulations prescribed by the State or -the United States (Yates v. Milwaukee, 10 Wall. 497); and since the decision in Rumsey v. N. Y. & N. E. R. R. Co. (133 N. Y. 79) that is the rule in this State. But, though the owner of adjacent upland has the right of access to the river and also the right to construct a proper pier therein, he has no easement or interest in the lands under water in front of the adjacent proprietors. The riparian right of access, so far as it is a property right incident to the ownership of the upland, is strictly a right of access by the front. It is said in Gould on Waters (§ 153): “The right of unobstructed access is also limited to the front "of the land, and does not include the right, if the riparian owner fills out his entire frontage, to have the docks or water spaces on either side kept open in order that he may have access to the sides of his wharf.” In Gray v. Bartlett (20 Pick. [Mass.] 186) it was held that the erection of a pier did not draw after it the exclusive right to use the open space adjoining as a dock for vessels at the wharf to lie in. In Bond v. Wool (107 N. C. 139) it was held that the defendant had a right to build a wharf or landing on his own water front though it cut off the side approach to the plaintiff’s landing. In Clark v. Peckham (10 R. I. 35) it was said: “ So far as concerns the front of his land the riparian owner has the undoubted right of access to it. * * * So long as the dock (vacant space between piers) is not filled by the owner of the bank * * * he has a right of access to the sides of his wharf; he has, indeed, no exclusive right to the use of the water opposite the adjoining land; he has it in common with the world.”

A contrary rule would give the riparian owner who might first erect a pier the power to prevent adjacent owners exercising their rights, by keeping the water clear for access to the sides of his pier, or limit such rights 'by preventing the adjacent proprietors from making piers extending any further into the stream than that first erected. In the harbor of Few York, and I presume generally in ports with much commerce, .pier lines and bulkhead lines have been established under the authority both of the State and Federal governments. The State has also prescribed that piers shall not be built out in that harbor within a specified distance from other piers.. Under this legislation, the owner of a pier which extends to the pier-line, obtains a certain protection against too great propinquity of other structures. But in the absence of such legislation one must so build his pier with reference to his ownership of the upland as to secure himself from interference by the structures of adjacent proprietors.

Though the plaintiffs have no easement in the lands under water «owned by the defendants, if the structure sought to be erected by •the defendants is unlawful and especially injurious to the plaintiffs, they, doubtless, may maintain an action for its removal. . But to be ■ a nuisance, the erection of a wharf in tide waters must injure navigation. (Thornton v. Grant,. 10 R. I. 477.) I think the evidence •does not show that the defendants’ pier obstructs navigation. The • channel, if it may be called a channel, on which «the pier terminates, «does not run beyond the pier, nor is there shown any navigation' ■beyond that point. It does not obstruct the plaintiffs’ vessel in. reaching their pier, for it lies without the route of the vessel. The most injurious; effect which the plaintiffs claim that the defendants’ pier may have, is' to prevent the facility and ease with which the vessel may be warped along and moored to the side of their pier. This, we do not think, is a.right of navigation, but a question of the right of access to the pier, which, as has already been shown, does not exist in favor of the plaintiffs over defendants’ lands. The only action the State has taken on the subject of pier lines at this point on the river is that of. the Land Commissioners in fixing the ■outer boundaries of the land under water, which the State has conveyed to the upland proprietors. The pier intended to be extended, ’by the defendants lies entirely within the limits of the grant to ■them. Therefore, so far as regulations of the State are concerned, «the defendants’ threatened action is entirely authorized.

■ Rbr do we think the Federal statute (26 U. S. Stat. at Large, 454, § 7.) renders the defendants’ work illegal. By that statute it is provided .“ that it shall not be lawful to build any wharf, pier, dolphin, boom, dam, weir, breakwater, bulkhead, jetty or structure of any kind outside established harbor lines, or in any navigable waters óf the United States where no harbor lines are or may be established, without the permission of' the Secretary of War, in any port, roadstead, haven, harbor, navigable river, or other waters of the United States, in such manner as shall obstruct or impair navigation, commerce or anchorage of said waters.” This section does not render any pier, that may be erected in navigable waters, without the permission of the Secretary of War, unlawful, but only such a pier as..obstructs or impairs navigation, commerce or anchorage of said waters. As. ■already stated, we think it has not been shown that the pier in question affects navigation. In this respect it differs from the case of Grand Trunk Railway Co. v. Backus (46 Fed. Rep. 211), and there is this further distinction between the cases, as I gather from the opinion of Justice Jackson : The city of Detroit, in the case cited, had established a pier line, and I infer that the defendants’ pier was sought to be extended beyond that line, for the opinion of the learned judge states that “ The defendants in this case, therefore, stand alone upon their rights as riparian proprietors, which, they insist,, give them the right to extend their present dock frontage 25 feet out in the river.” In the present case the defendants have all the authority that the State can give them.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

Judgment reversed and new trial gfanted, costs to abide the event.  