
    The Mayor, etc., of New York, Resp’t, v. George Law, Jr. et al., Ex’rs, et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 27, 1891.)
    
    1. New York City—Land grant—Wharfage.
    The defendants’ grantors received a grant from the city of New York of land under water, by the terms of which they were to build and make the streets and wharfs through the premises granted, but not until requested to do so by the city, and the city covenanted that upon the construction of the exterior street, called Tompkins, they should have the wharfage, etc., accruing from the wharf on said street opposite the premises granted. No request was ever made for the construction of Tompkins street. Held, that the grantees did not become entitled to wharfage at or upon any of the streets passing through the premises, that by virtue of the grant they had no right to build or maintain a pier on an interior street and there take wharfage and that defendants, as their successors, could never become entitled to any wharfage until upon the request of the city they have constructed Tompkins street.
    2, Same—Prescription—Estoppel.
    Defendants did not acquire the right to maintain their pier and buildings and to take wharfage from the wharfs upon the interior street by possession, prescription or by estoppel.
    8. Same—Ejectment.
    Where grantors have entered upon the land of the city, have put structures thereon, are using the same mainly for their private purposes and have erected a wharf and pier and are taking wharfage thereon, ejectment is the proper form of remedy.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiffs entered upon report of referee.
    
      
      John F. Dillon and F. Randolph Robinson, for app’lts; D. J. Dean and James Sillhouse, for resp’t
    
      
       Affirming 25 N. Y. State Rep., 1084.
    
   Earl, J.

This is an action of ejectment to recover land situate in the city of New York bounded as follows: “Northerly by the northerly line of Tenth street extended easterly to the bulkhead line. Southerly by the centre line of Tenth street extending easterly to the bulkhead line, easterly by the said bulkhead line in the East river, and westerly by the westerly line of the Tenth street ferry house and a line in continuation thereof southerly to the centre line of Tenth street, together with the pier, or part of a pier and other structures thereon erected and the wharf-age and other emoluments thereof.” The cause was referred and the referee gave judgment to the plaintiff.

The title of the defendants to the premises in question, whatever it is, originated in a grant of land under water from the city to Charles Henry Hall, dated February 28, 1829, and the rights of the parties depend upon that grant and the proper construction thereof. The premises granted are described as follows: All that certain water lot, vacant ground and soil under water to be made land and gained out of the East river situate, lying and being in the Ninth Ward of the said city and bounded as follows, to wit: Westerly by high water mark, East river, northerly by the continuation of a line drawn through the middle of Thirteenth street; easterly by the westerly side of a certain new street hereinafter mentioned to be made, called Tompkins street, and southwardly by a certain other water lot granted or to be granted by the said parties of the first part to Nicholas William Stuyvesant, containing in breadth on the easterly side 864 feet, and in length on the southerly side 682 feet and five inches, be the same more or less, as by a map or survey thereof made by D. Ewen, city surveyor, dated March, 1825, a copy of which is hereunto annexed, reference being thereunto had will more fully and at large appear (excepting, however, so much of the said above described premises as is required for the streets hereinafter mentioned to be made), together with all and singular the privileges, advantages, hereditaments and appurtenances, to the same belonging or in any wise appertaining.”

Hall was the owner of the adjacent upland. The grant bound him, his heirs and assigns to pay an annual rental forever. It also bound them with three months next after request by the city, but not until so requested, at their own expense, to build and make the streets or wharves through the premises laid down upon the map annexed to the grant. Among such streets are Eleventh, Twelfth, the northly half of Tenth street, the southerly half of Thirteenth street, Tompkins street along the easterly side of the premises seventy feet wide, and other streets ; and it bound them to keep such streets or wharves thus to be built forever in repair at their own expense, and provided that the same should forever thereafter continue to be and remain public streets for the use of the public, and that in case default should be made by the grantee, his heirs or assigns, “ in building, erecting, making and finishing the said wharves and streets as aforesaid, or any part thereof when they shall be so required as above mentioned, then, in that case, it shall and may be lawful for the said parties of the first part and their successors to grant the right of making the same, and the right of receiving the profits thereof, to such person or persons in fee or otherwise, and upon such terms as they, the said parties of the first part, or their successors, shall deem meet, or at the election of the said parties of the first part, or their successors, to make the same themselves, and retain the use thereof for public purposes.” And the city covenanted that upon the payment of the annual rent and performance of all the covenants by the grantee, his heirs and assigns, he and they “ shall and lawfully may from time to time, and at all times forever hereafter fully have, enjoy, take and hold to his and their only proper use, all manner of wharfage, cranage, advantages and emoluments growing or accruing by or from that part of the said wharf or street called Tompkins street, fronting on the East river, which is opposite the said premises hereby granted.”

Now under this grant who had the fee of the land in the streets to be constructed through the premises ? Clearly the city. That was excepted from the premises granted. As the city then owned in fee the land upon which all, or nearly all, its streets were constructed, and as it was the settled policy of the city to condemn or purchase land in fee for its streets, it cannot be supposed that it meant to depart from the usual course in this grant and actually convey away the fee of the land needed for streets and to reserve to itself only street easements therein. The city owned the fee of the land in Tenth, Eleventh, Twelfth and Thirteenth streets where they passed through the adjacent upland, and it cannot be supposed that it intended to part with the fee of the land needed for the extension of the streets through the land to be reclaimed from the water, so that it would have the fee of the land in portions of the 'streets and only easements in the lands of other portions. This construction of the exception contained in this grant has the sanction of ample authority, and it is not needful to say more about it. Langdon v. The Mayor, etc., 93 N. Y., 149; Duryea v. The Mayor, etc., 62 id., 592; S. C., 96 id., 477; Coffin v. Scott, 102 id., 730.

The land, therefore, within the exterior lines of the projected streets belongs to the city, and the defendants had no right to fill it up or occupy it for any purpose without the permission of the city. They were not to make or build the streets or wharves until requested by the city to do so, and any unauthorized entry thereon would be a trespass. The city could, however, acquiesce in the filling up and construction of one of those streets under such circumstances and for such a length of time that such acquiescence and its recognition of the street would be equivalent to a request to build the street under the grant.

The grantee became the absolute owner of the land between the streets, the land granted, and that he could fill up whenever he chose, suiting his own pleasure as to the time and manner of doing it, but there was nothing in the grant binding him to fill it up. Duryea v. The Mayor, supra.

Tompkins street is on the easterly side of the land granted, and it is not claimed that any part of the land in that street was granted. When filled up and constructed as a wharf it will lie between the East river and the land granted. It will not be intersected by Tenth, Eleventh, Twelfth and Thirteenth streets, and this cut up into sections. It is a continuous street along the easterly side of the granted premises extending beyond them, and it is that street and the whole of it which the grantee was bound, when required by the city, to build and forever maintain along “the easterly side” and the whole of the easterly side of the “ granted premises.” It is quite unreasonable to suppose that the parties to the grant meant by the words “ granted premises” only the several blocks of land between the streets; they evidently had in view the entire block of land bounded and described as the granted premises, although the streets through the same were excepted. The land from the middle of Tenth street to the middle of Thirteenth street was contemplated and bounded as a whole tract.

The grantee was to have the wharfage of the whole of the wharf which he was thus bound to build and maintain. Although the wharfage was in form secured to him by a covenant, it was, as was held in Langdon v. The Mayor, in effect granted to him. It was the wharfage growing or accruing by or from that part of the Tompkins street wharf fronting on the East river and “ opposite ” to the premises granted. The word “ opposite ” was used so as to exclude from the operation of the grant the right to wharfage northerly or southerly of the premises bounded and described, and so as to confine the wharfage to that portion of the wharf which the grantee was bound to construct and maintain. This right of wharfage was granted to the grantee, “ his heirs and assigns,” and it was not a mere easement appurtenant to the land conveyed to the grantee. It is quite true that easements must generally be appurtenant to some land or estate, and that there must be a dominant estate to which the easement appertains and a servient estate upon which it is imposed. But that is not true of all easements. There may be easements in gross which are not appurtenant to any land, and which the owner may enjoy, although he does not own or possess a dominant estate or any land whatever. Here the intention was to create an interest in this wharf by this grant which the grantee could enjoy himself or convey to any other person. Goodrich v. Burbank, 12 Allen, 459; Washburn on Easements, 10, 11, 36, 217.

It is very clear that by this grant the only wharfage granted was the wharfage upon the wharf called Tompkins street There is no covenant that the grantee should have any other wharfage, and the express mention of the whafage at this wharf would, by fair implication, exclude wharfage at' any other place. Our attention is called by the learned counsel for the defendants, with considerable emphasis, to that portion of the grant which provides that in case default shall be made by the grantee in building any of the wharves and streets which by the grant he was bound to build when required by the city, that then and in that case it should be lawful for the city to grant the right to build the same, and the right of “receiving the profits thereof,” to other persons, in fee or otherwise, as the city might determine. The argument, in substance, is that the word “ profits ” there used means the profits from any or all the streets passing through the granted premises, as well as those from Tompkins street, and that the necessary implication is that, but for the default, the grantee would be entitled to such profits. There is just enough to form some basis for such an argument, and yet we do not think the argument well founded. The express grant of the wharfage on Tompkins street would seem by implication to exclude a grant of wharfage anywhere else, and the word “ profits,” as used there, can be satisfied by referring it to the profits from Tompkins street alone, and that those profits were in mind at the time the word was used in that connection. But whatever meaning should be given to the word profits as here used, it is nevertheless true that the city could grant the profits, so far as they could be made upon any of these streets, to any other person, in case the plaintiff did not build the streets when required, and any implication which can be derived from the use of the word profits in that portion of the grant is fully overcome By the implication to be drawn from the express' grant of wharfage at Tompkins street wharf alone. Indeed, it is difficult to see how wharfage at any other place could have been contemplated, for after the construction of the Tompkins street wharf there would be no access by vessels to any portion of the granted premises, and no place where wharfage could be taken except at that wharf. It is not probable that the parties had in mind a period of time before the construction of Tompkins street, during which wharfage could be taken further inland at some other point.

It is not a just inference that the grantee was to have wharfage at the intersecting streets, which he was bound to construct and maintain, as a compensation for his labor and expenditures. There was ample consideration for all the covenants binding him in that he was to have all the wharfage in front of the granted premises, and was to have all the land reclaimed from the water between the streets.

We have, therefore, come to the conclusion that the grantee did not become entitled to wharfage at or upon any of the streets passing through these premises, that by virtue of his grant he had no right to build or maintain a pier in Tenth street and there take wharfage, and that the defendants, as the successors of the grantee, ■can never become entitled to any wharfage until, upon the request of the city, they have constructed Tompkins street. When they have constructed that,,or any portion of it, upon the request of the city, then and not until then can they commence to take wharfage.

Therefore, if the defendants are bound to stand upon the grant alone, they had no right to occupy any portion of Tenth street, and to maintain thereon their and structures connected with their ferry, and they.had no right to take any wharfage there, and this judgment is clearly correct.

But they claim that they have acquired the right to maintain their pier and buildings and to take wharfage from this street by adverse possession, by prescription and by estoppel. We have considered the learned and able arguments submitted to us upon these claims on behalf of the defendants, and we are satisfied that they are unsound, and as to them we will leave the case to stand upon the able opinion of the referee before whom the case was tried.

It is said that ejectment is not the proper form of remedy in this case and that the judgment is too broad. The defendants have entered upon the land of the city, have put structures thereon, are using the same mainly for their private purposes, and have erected a wharf and pier and are taking wharfage thereon. Thus they are so in possession that under all the authorities the city can maintain this action and the judgment is not too broad. Wager v. The Troy Union Railroad Co., 25 N. Y., 526; Reformed Church v. Schoolcraft, 65 id., 135, 151; Strong v. Cily of Brooklyn, 68 id., 1, 11; Uline v. N. Y. C. & H. R. R. R. Co., 101 id., 98, 123; 2 Dillon on Municipal Corporations, 3 Ed., § 662.

If Tenth street has become a street of the city, and is so filled up and constructed that it can be used as a street, the city, having recovered it, is bound still to appropriate the land recovered to street purposes. This recovery from these defendants does not absolve the city from the discharge of its public duty to keep and maintain the street and it does not destroy the street. It simply puts an end to the private occupation and use thereof for any purpose of these defendants.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.

All concur; Huger, Ch. J., in result.  