
    The Mayor, etc., of New York, Resp’t, v. The Cunard Steamship Co., Limited, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    Municipal corporations—Obstructions to piers and slips—Laws 1871, chap. 574.
    On Ajjril 26, 1876, the dock department of the city passed a resolution authorizing the granting of a lease to the Central Railroad of New Jersey of the northerly side of a pier for the purpose of erecting a ferry rack, but without authority to use any portion of the surface of the pier, and a lease was accordingly executed. Subsequently another resolution was passed authorizing it to drive piles in the slip and erect a ferry house. The railroad company thereafter assigned to defendant all its rights and privileges under the resolution of April 26, 1876. Held, that this did not convey to defendant the rights and privileges proposed to be secured to the railroad under the subsequent resolution, and that if it had been intended by the resolution to permit the erection and maintenance of a shed or structure in the slip it was in conflict with § 6 of chap. -574, Laws 1871, prohibiting such obstructions.
    Appeal from a judgment recovered on trial at the special term.
    
      George De Forest Lord, for app’lt; D. J. Dean, for resp’t.
   Daniels, J.

The action was brought to secure the removal of :a shed erected upon the northerly side of new pier No. 40, extending from the westerly side of West street a distance of about 570 feet into the Hudson river. The easterly end of the shed was upon the new bulkhead line, forming the westerly line of West street, and being 250 feet west of the easterly line of that street The shed extended about fifty feet westerly along the pier line from the bulkhead, and in a northerly direction, for a distance of about ninety feet, occupying in that manner one-half the space between piers 40 and 41. It was erected upon piles driven into the slip west of the bulkhead, and was used by the defendant as a depository or warehouse for goods received to load upon its steamers, and also for goods tinladen from those steamers. Its right to maintain the shed in this manner was derived under a resolution of the dock department of the city of New York, passed on the 26th of April, 1876. This resolution provided:

That the Central Railroad of New Jersey be, and they are hereby informed that this department will grant a lease to the said corporation, for a term of ten years, of the northerly side of .a pier to be built, wholly or in part, upon the premises now occupied by pier 48, ¡¡Sí. R., for the purpose of erecting thereat a'ferry rack, as soon as the pier shall be constructed or completed by this department in conformity with the new plans adopted, or to be adopted, for the improvement of the water front, at a yearly rent of $7,500, but it is understood that the said corporation shall have no right to the use of any portion of the surface of said pier; the department reserves the right to rebuild the said pier, and the-bulkhead wall contiguous thereto, at such time as it may by said department be deemed expedient; and further, that until the department shall take possession of the said pier 48, for the purpose of rebuilding, the said Central Railroad of ¡New Jersey shall pay to this department for the use of the whole of the L., on the north, side of said pier, and for the use of the water adjacent to said north side, for ferry purposes, rent at the rate of $5,000 per annum ; but it is understood that the said corporation shall have no right during such period to the use of any portion of the surface-of the said pier, excepting that of the said L., provided that the said Central Railroad of blew Jersey shall, within five days after the receipt of this notice, file in this office its acceptance in writing of the terms hereof, and agree to execute a lease containing the usual covenants and conditions, and in conformity with the terms herein set forth, for the northerly side of the pier when so rebuilt and ready for occupancy.”

An additional resolution was adopted on the 21st of June, 1876, by the same board, giving permission to the Central Railroad Company of ¡New Jersey to drive piles in this slip adjacent to the north side of the old. pier, then known as pier 48, and to erect thereon a platform and ferry houses, together with such other structures, racks, bridges, etc., as might be necessary for use of a first class ferry, and then in the course of erection. The company-continued to use the slip for the purposes of its ferry until sometime in the year 1878. And on the 1st of ¡November, 1880, the railroad company and its receiver executed an assignment to the defendant, by which “ The parties of the first part, in consideration of the sum of one dollar to them in hand paid, and other-good and valuable considerations, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant,bargain, sell, assign,transfer, and set over to the said party of the second part, all rights and privileges to which they, the said parties of the first part, or either of them are in any way entitled under or by virtue of a certain resolution of the board of commissioners governing the department of docks, passed at a meeting of said board held on the twenty-sixth day of April, one thousand eight hundred and seventy-six, a copy of which is hereto annexed; and also any lease made by the said department of docks to the said parties of the first part or either of them, 'pursuant to said resolution, and the said parties of the first part hereby request the said the department of docks to substitute the said the Cunard Steamship Company, Limited, as lessees in any lease to be made under or pursuant to said resolution.”

And on the 10th of the same month the dock department, by a resolution, assented “ to such substitution, and hereby agrees to-grant a lease of the premises referred to above, and now known as the northerly side of pier New, 40, North river, but no right to the use of any portion of the surface o'f said pier for a term of eight years and six months from November 1,1880, to the Cunard Steamship Company, Limited, at an annual rent of $7,500, payable quarterly in advance, and to contain a covenant for a renewal term of ten years, at an annual rent of $7,625, provided that the said steamship company shall, within ten days from the receipt hereof, file in this office its acceptance in writing of the terms hereof, and agree to execute a lease containing the usual covenants and conditions, and in conformity with the terms herein set forth, when notified so to do by this board,” the terms of which were accepted by the defendant on the 15th of the same month. After the resolution of the 26th of April, 1876, the department removed the shed which had been erected by the railroad company and rebuilt the pier, as well as the bulkhead, locating the bulkhead about 180 feét westerly of the preceding bulkhead, which was seventy feet westerly of the easterly side of West street. And after the removal of the shed and the completion of the new pier, it restored so much of the shed as still stands upon the piling and is occupied and used-by the defendant

In support of the action it was alleged that this shed was an illegal structure, and that the plaintiff, underits title and authority, was entitled to a judgment securing its removal for the purpose of enabling shipping to reach and use the bulkhead itself without obstruction. And the court adopted that view at the trial, and enjoined the defendant against maintaining the shed, and directing its removal. And People v. Vanderbilt, 26 N. Y., 287, is a precedent, approved by the court of appeals, for this judgment, in case "the plaintiff is entitled to maintain the action.

By the resolution of the 26th of April, 1876, the northerly side -of the pier to be built was leased for the purpose of erecting thereat a ferry rack, and for the use of the water adjacent to the pier for ferry purposes. But the resolution contained no express authority permitting the railroad company to erect the structure now in controversy. That authority was in terms given to it for the first time by the resolution adopted on the 21st of June of the same year. But there was no assignment by the railroad company to the defendant of the rights or privileges which it was proposed by that resolution to secure to the railroad company. The assignment, on the contrary, was exclusively restricted to the interest intended to be created by the resolution of the 26th of April, 1876, which contained no provision for putting up, or maintaining, this structure. And the fact that this liberty or right was not secured by the first resolution, but was in terms intended to be delegated by the second"resolution, is quite a decisive indication that it was understood by the dock commissioners and the Central .Railroad Company that the latter possessed no authority to erect or maintain the structure under the first resolution. íf that had not been the fact, then there certainly was no room whatever for passing the additional resolution of the 21st of June.- And by the assignment, which was limited to the first resolution and the lease therein mentioned, the same intention appears.to have pervaded the acts of the parties. And that was to give to the defendant, the rights and privileges of maintaining the ferry rack, and operating the ferry, but nothing substantial beyond that

But if it had been intended by the resolution of the 26th of' April to permit the erection and maintenance of this structure in the slip, then it was so far unauthorized, for the reason that it. then came in conflict with § 6 of chap. 574 of the Laws of 1871. This act has since undergone changes by which portions of it. have been repealed, but this section was in force at the time when this resolution was adopted, and appeal’s to have so remained to-this time. And it provided for and empowered the department to adopt plans, subject to the approval of the commissioners of." the sinking fund, for this exterior or westerly line of the city, and the extension of this and other piers into the river. And soon after the passage of this act such plans were adopted- and. approved by the commissioners of the sinking fund. And subd.. 3 of this section in that event declared, that the plan so adopted, should “ be the sole plan according to which any wharf, pier, bulkhead, basin, dock, or slip, or any wharf structure, or superstructure, shall thereafter be laid out, or constructed, within the-territory or district embraced in and specified upon such plan, and. be the sole plan and authority for solid filling into waters surrounding said city, and for extending piers into said waters and erecting bulkheads ground said city.”

And it was further directed in the same subdivision that: “From, the time of the adoption of said plan, no wharf, pier, bulkhead, basin, dock, slip, or any wharf structure, or superstructure, shall be laid out, built, or rebuilt, within such territory or district except in accordance with such plans.” And by subd. 5 of the-same section: “ The said Board of the Department of Docks shall proceed according to said plan, or plans, to lay out, establish and construct wharfs, piers, bulkheads, basins, docks, or slips, in the-territory or district embraced in such plan or plans.” And by subd. 6 of the section it was in substance provided that the bulkheads and slips erected according to the plan should be used only for the purposes of commercial business by vessels approaching and secured to them in the course of the transaction of that business.

In the plans which were adopted and followed in constructing-the bulkhead and the pier, there was no appropriation of any part of the slip between the piers for driving piles into the earth, and erecting and maintaining a shed or structure of this description upon those piles. But the spaces between this and other piers included in the plan were left open, unobstructed and free-to be used by water craft in the course óf the transaction of their business. And the erection of this shed over the water of a slip-standing upon these piles was not only in violation of the plan itself, but in contravention of the provisions of the statute already mentioned forbidding any other use of the water front than ' that mentioned in the statute. The theory of the act in this respect characterized the preceding legislation adopted for the locatian and regulation of the water front of the city of New York. An act upon this subject was passed on the 3d of April, 1798, which is known as chapter 80 of the laws of that year. And by that act a similar declaration was made, “ That no building of any kind or description, whatsoever, other than the said piers and bridges, shall, at any time hereafter, be erected upon said streets or wharfs, or between them respectively and the rivers to which they respectively shall front and adjoin.” Another act upon the same subject was enacted in April, 1857, and is known as chapter 763 of the laws of that year. And by § 2 of that act it was declared that it should “not be lawful to fill in with earth, stone, or other solid material, in the waters of said port, beyond the bulkhead line, or line of solid filling hereby established. Nor shall it be lawful to erect any structure exterior to the said bulkhead line, except the sea wall mentioned in the first section of this act.” And these acts exhibit the policy of the legislature to have been, prior to the enactment of the law of 1870 and 1871, to exclude the permanent, or even transient, occupation of the waters of the slips, or beyond the bulkheads, by structures of this description. And that policy has been maintained and followed with uniformity in the enforcement of the legislation of the state. People v. Vanderbilt, 26 N.Y., 287; Commissioners, etc., v. Clark, 33 id., 251, where it was said by Denio, Ch. J., that “ The language and the obvious policy of the statute is that these piers and bulkheads should be kept wholly clear of incumbrances, and it will not answer for parties permanently to engross portions of their area, and then ask a jury to speculate upon the degree of inconvenience which the public would suffer, and whether it was not fairly balanced by the advantage of the structure which constituted the incumbrance.” Id., 265. And this rule of construction was also applied in People v. Mallory, 46 How., 281. And so it was under this statute of 1871 in Kingsland v. Mayor, etc., 45 Hun, 198; 9 N. Y. State Rep., 768; affirmed, 110 N. Y, 569 ; 18 N. Y. State Rep., 701. And this restrictive policy of the statute has been no farther departed from than by chapter 249 of the Laws of 1875, allowing sheds under specified circumstances to be erected on leased piers.

The fact that both the dock department and the city itself has permitted ferry companies using other slips to be incumbered by structures of a similar description, both before and after the passage of this act of 1871, will not legalize this structure. For the authority conferred upon the board was in no respect discretionary. It was absolute and positive, forbidding the waters of the slips to be obstructed or incumbered by such a structure beyond the bulkhead line. If they could be obstructed to the extent to which this structure has reached, the same authority would permit the waters of the slip to be wholly occupied, and the slip in that manner for all practical purposes destroyed. And that certainly could not have been intended to be authorized by the legislature. And, therefore, the action of the department of docks in permitting, or even sanctioning such erections, affords no legal foundation for permitting their maintenance when, as in this case, an action has been brought to secure the removal of the offensive structure. • .

The provisions of the statute are imperative, rendering this an illegal obstruction of the waters of the slip. Whether a ferry can be maintained under the application of this rule it is not necessary to inquire. For if it cannot be, then further legislation for the relief of those enterprises may be required from the legislature. Or, as was considered in Jordan v. Metropolitan, etc., Co., 65 How., 255, the necessary buildings required for the convenient prosecution of the ferrying business may require to be 'extended into the street itself. It is not, however, necessary now tó express any opinion upon that subject. For the disposition of this case, it is only necessary to observe and carry into effect these provisions-of the law of 1871. And under that act, as it has already been construed and enforced, the judgment recovered by the plaintiff is correct, and should be affirmed, with costs.

Van Brunt, P. J., concurs.  