
    Mayor, Etc., of the City of New York v. Law et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Deeds—Exceptions.
    The city of New York, by its charters, was on April 8, 1807, seised of certain land on the shore of East river, between high and low water marks, and on that day the legislature granted to said city the title of the state to the land contiguous thereto from low-water mark, extending 400 feet into the river, with a reservation of pre-emptive rights to the proprietors of adjacent lands. In 1825 the city granted to the adjacent proprietor, H., defendant’s grantor, a body of land covered by the water of said river,excepting, however, so much of the said above-described premises as is required for the streets hereinafter mentioned to be made. ” The grant also contained a covenant by H. to build a continuation of Tenth street through the premises within three months after being required to do so by the city, the proposed ., street being fully described and located in the grant, held, that the fee to the land intended to be used as a street did not pass, the exception being in prcesenti, . and, although the city had never requested the construction of the street, or formally adopted it, it was entitled to the possession of the land.
    
      2. Same—Municipal Corporations—Streets—Dedication.
    If formal action to show the adoption of the street was essential to the city’s right to possession, the adoption by the council of a plan of the streets simultaneously with the grant to H. would be sufficient for that purpose.
    3. Same—Adverse Possession.
    Possession of the land by defendants and their grantors, accompanied by the erection of wharves and other buildings thereon, would not be adverse, when the conveyance under which they claim showed that they had no title to the excepted land, and their own subsequent conveyances recognized and repeated the exception.
    4. Same—Estoppel.
    The city would not, by collecting taxes on the improvements, be estopped from claiming title to the land, as defendants were aware of all the facts, and could not have been misled by the city’s action.
    5. Same—Confirmatory Act.
    Act N. Y. April 23,1826, which provides that Tompkins street shall be the permanent exterior street between certain points on East river, and that all grants made by the city extending thus far should be valid, does not vest the fee of that part of the land in question lying outside the 400-foot line in defendants, as its effect is limited by the exception in the grant.
    <8. Same—Patent.
    Whether or not the state surrendered any part of her rights in that portion of the land lying beyond the 400-foot line by the act of 1826, a patent authorized by the legislature in 1871, conveying the land to the city for wharfage purposes, would have that efiect, and it is immaterial that at that time the land was covered by piers and other buildings, so that the water did not actually flow over it.
    Appeal from judgment on report of referee.
    Action by the mayor, aldermen, and commonalty of the city of New York against George Law, Jr., and others, to recover the possession of land covered by the waters of East river, at the foot of Tenth street, in New York city. The action was referred to Hooper O. Van Vorst, referee, who filed the following opinion:
    “Tin's action was brought against the defendants to recover portions of Tenth street lying between the ferry-house and the bulk-head line or exterior line of Tompkins street, in East river, upon allegations upon the part of plaintiffs of title and right of possession in them of the premises, and of possession and unlawful detention by the defendants. The defendants, by their answer, controvert plaintiffs’ title and their right to possession, and deny their use, possession, or detention of the premises described in the complaint is unlawful. They claim title through mesne conveyances by grant from the plaintiffs, and allege that they have held the same adversely for a period of fifty years. They also claim that the defendants’ ownership of the land and structures thereon has been recognized, acknowledged, and acquiesced in by the plaintiffs, and that by reason thereof the defendants have spent money for taxes, assessments, and repairs on the property. The plaintiffs, under the Dongan charter of 1686, subsequently confirmed by the Montgomerie charter, acquired title to the land between high and low water mark contiguous to the premises in question. The act of April 8, 1807, c. 115, § 15, directed a -conveyance to the plaintiffs of the right and title of the people of the state to the land covered with water along the west shore of the East river or sound, contiguous to or adjoining the land of the said mayor, aldermen, etc., from low-water mark, and extended four hundred feet into the said river or sound, provided always that the proprietors of the adjacent land should have the pre-emptive right in all grants made by the corporation of the city of any lands under water granted to the corporation.’ At the time of this grant Nicholas William Stuyvesant was the owner of the Bowery farm, which embraced the upland between and north and south of the lines of the present Tenth street. In 1824, by deeds dated January 16th and September 28th of that year, lie conveyed to Charles Henry Hall so much of the upland as was between the center line of Tenth street and the center line of Thirteenth street, extending into the East river in front of the granted premises as far as the corporation grants shall or may extend into the river. On the 28th
    
      day of February, 1825, the plaintiffs executed and delivered to Charles Henry Hall a lease or grant of the water-lot, vacant ground, and soil under water to be made land and gained out of the Bast river, bounded westerly by high-water mark of the East river, northwardly by the continuation of a line drawn through the middle of Thirteenth street, easterly by the westerly side of a certain new street to be made, called 1 Tompkins street,’ and southwardly by a certain other water-lot granted or to be granted by the plaintiff to Ñ. W. Stuyvesant. The lease or grant contains these words, • excepting, however, so much of the said above-described premises as is required for the streets hereinafter mentioned to be made,’ and, as the locus in quo is, in substance, so much of the premises covered by the grant to Hall, although at the time covered by water, as forms the north half of Tenth street within the limits above mentioned, the right of the parties depends greatly upon the construction to be given to the words constituting the exception.
    “The case of Langdon v. Mayor, etc., 93 IT. Y. 129, contains a clause of the same nature, and expressed in equivalent words. At page 149, Earl, J., says, 1 It is conceded that the deed to Astor vested in him the absolute fee to the land granted, and that be could till up the land under water, and thus become the owner of the dry land. While the description by metes and bounds carried the grant to the exterior west line of West street, the lands within the limits of that street and of Washington street were, we think, excepted from the grant by the language “saving and reserving out of the several water-lots and soil under water above mentioned so much of the same as will be necessary to make Washington street sixty feet wide, and West street seventy feet wide.” What was saved, or (meaning the same thing here) excepted, was not easements for the streets, but the soil upon which they were to be constructed, and the design probably was to vest the title to the land in those streets in the city, the same as it was then the custom to vest in the city the title to all the lands taken by it for streets.’ In that case, Mr. Astor, the grantee, had himself covenanted to build, and he had actually constructed, West street. By the grant in the case at bar the grantee had covenanted to build the street when requested so to do by the municipal authorities. Authority is not wanting to show that the language in the lease from the plaintiff to Hall, implies a present exception; that is to say, no title was intended to pass, and none passed to the grantee Hall, to the soil under water, upon which the streets were to be constructed, and that the same always remained in the grantors. To this effect is Coffin v. Scott, 19 Wkly. Dig. 413, in the general term of the supreme court, First department, March, 1884. A copy of the opinion in that case has been handed up with the papers. This case was affirmed in the court of appeals, 102 IT. Y. 730; so, also, Ice Co.v. Railroad Co., 65 Ilow. Pr. 210, 218. It is, however, urged by the defendants’ counsel that the requirement referred to in the exception is necessarily the possible future demand to construct streets, subsequently set forth in the grant, and the result of the performance of such requisite, if made, is expressed to be that when the streets are constructed, and not before, the same shall forever after continue to be and remain public streets or highways, for the free and common use and passage for the inhabitants of the city, and that the exception, therefore, cannot have any greater length or breadth than the possible requirement to which it relates, and that it is an exception operative in futuro, and not in prasenti, and that until the requirement is made by the plaintiffs the defendants are entitled to the possession of the entire premises, including the portion upon which the streets are to be constructed. I do not think this position is tenable. The words of the exception are definite and certain, ‘ excepting so much of the said above-described premises as is required for the streets hereinafter mentioned to be made.’ The exception is neither conditional nor contingent, nor is it repugnant to the grant. It in no essential feature differs from the words of the exception in the Langdon
    
    
      
      Case, supra. The streets wanted to be made are definitely bounded and described. The description is general, by metes and bounds, and the excepted portion, readily severable therefrom, is excluded by specific words. These constitute the attribute of a valid exception at common law. 3 Washb. Iieal Prop. pp. 369, 370, marg. p. 640; 1 Wood, Conv. 207; Cruise, Dig. tit. 37, c. 21; tífreenleaf v. Birth, 6 Pet. 310.
    “But, if the intention of the original parties to the grant, tobe gathered from the entire instrument, should prevail, as it clearly must, then the exclusion from the grant of a certain definite portion of the described premises for streets has been effectively and by apt words secured. These considerations distinguish the case at bar from the cases cited by defendants’ counsel. In Dygert v. Matthews, 11 Wend. 35, the point under discussion was the effect of the clause, • excepting and reserving out of the said piece of land so much as is necessary for the use of a grist-mill on the east side of the road at the west end of the saw-mill dam,’ at the end of a description by metes and bounds. In that case, as in Jackson v. Vermilyea, 6 Cow. 677, there was no specific description of the quantity of land reserved or accepted. In neither case, until the grantor exercised his right of appropriation, could it be determined exactly what portion of the demised premises would be excluded from the grant. The element of certainty, so essential to a valid exception, was wanting. To the same effect is Thruston v. Masterson, 9 Dana, 228. In that case the locus of exception was made contingent on the grantee’s act of electing. In Tuttle v. Walker, 46 Me. 280, the exception was made contingent upon the act of the town in laying out and excepting the street in question. In each of these cases there is an existing element of contingency, uncertainty, or indefiniteness from which the case at bar is free. The case of Cincinnati v. Newell, 7 Ohio St. 40, 41, turns upon the fact that the grantors reserved nothing to themselves, but only an easement in favor of the public. I am, therefore, strengthened in the conclusion that by the clause in question contained in the grant to Hall so much of the land as was embraced within the limits of the street mentioned was excepted from the premises conveyed, and that no title or interest, or any license to occupy the same, passed to the grantees by virtue of the grant to Hall, but' that the same remained and has always been the property of the city, to the possession of which it has at all times been entitled. The title to the soil of the street never having passed from the plaintiffs, but being expressly excepted from the grants, entitles them to such possession. The provisions of the exception amount to an explicit dedication to the public of the spaces included within the lines of the streets. The streets, it is true, were not actually made, but the soil under water upon which they were to be built was clearly described and excepted, and the words ‘ to be made ’ simply indicate the then condition of the soil, and were used to designate the portion of the premises intended to be excepted, and the uses to which it was to be applied. The dimensions and limits of these streets were fixed by the grant itself, and clearly laid down on a map annexed to same. If what has been heretofore stated to be a correct exposition of the plaintiffs’ rights, and the true construction of this part of the grant to Hall, no formal action on the part of the municipal authorities adopting such streets would be necessary to secure any right in the plaintiffs to the soil intended to be excepted, as its complete title and present right to the possession of a well-defined portion of the soil, embraced within the general description of the land, the subject of the suit, is secured by the excention itself. The plaintiffs’ right was not made dependent upon any such municipal action. But, if any such action was necessary, there is enough in the evidence to show such action previously to the grant, or in substance simultaneously therewith. This is shown by the action of the finance committee, and the adoption of its report by the common council, on the 28th February, 1825, establishing the plan of the streets as laid down on a map, and the permanent
    
      line on the East river, north of Corlear’s Hook, to Fourteenth street. This map and plan show the streets as they were proposed to be made. This action on the part of the common council simultaneously with the grant to Hall shows that it was not left in doubt as to the precise dimensions and qxact location of the excepted part of the premises. It is true that the grantees engaged to build these streets when called upon to do so, and to maintain them. That was one of the conditions of the grant, and for which it secured a reward or compensation to the grantees of wharfage and cranage, from the foot of the street fronting on the East river, called ‘Tompkins street,’ opposite to the premises granted, which would not include wharfage from the end of Tenth street, as constructed. The learned counsel for the defendants, in his argument under this head, frankly states that no right to the fee of that portion of the soil covered by the exception passed to the grantees. That is a recognition of the fact that the exception did not fail to take effect upon the ground that it was either uncertain or repugnant, but he did claim that the right to the possession of the excepted spaces did pass to the grantee, subject to be divested by a requisition from the municipal authorities to construct the streets. The covenant on the part of the grantees was to construct streets when called upon, but that, of itself, could give no right to take possession of and to occupy the excepted spaces in the mean time. The full enjoyment of the other parts of the granted premises was not dependent upon the occupation by the grantees of the spaces in question until the streets were built and ready to be used by the public. The fact that the spaces were excepted from the grant affords the highest evidence that the grantor parted with none of the incidents annexed to the absolute ownership of the land,—the right to possess and enjoy it,—and because the grantee covenanted at some future day, and when, he might be required to do so, to perform some duty with respect to what was excepted from the grant, it does not follow that he was, by a necessary implication, to occupy and enjoy it in the mean time.
    “ But the defendants insist that if the exception in question was one in prcesenti, and if the plaintiffs’ right to the possession of the land under water within the line of the proposed extension of Tenth street survived, notwithstanding the grant to Hall, then the occupation and use of the land by themselves and their predecessors has not been under and in subordination to such grant, but has been in hostility and adverse to it, and to the plaintiffs’ right of possession; in other words, the defendants would make out a title to the locus in quo by adverse possession, notwithstanding the precise words of the grant under which the defendants’ claim arose. It would be amazing to hold that the grantee under an instrument of the nature of the one we are considering, by the terms of which portions of the land were excepted for public streets, which the grantee had covenanted to make and keep in repair for public use, could by. any occupation thereof acquire an absolute right as owner in opposition to the words and clear intent of the instrument under which he took title.' The right and title of the plaintiffs is admitted in the grant from Hall and wife to the Hew York Dry-Dock Company, May 18, 1825. The premises in question are not embraced within the description of what was granted. Tenth street is excluded, and in that conveyance, and in subsequent conveyances down to the deed under which the premises are now held, the covenants, agreements, and reservations contained in the original grant to Hall are recognized and are admitted to be in force. In Bridges v. Wychoff, 67 H. Y. 130, it is held that the plaintiff, taking under a conveyance, recognizing the public right, could not claim title adversely to the public title. ‘ The quality and extent of the right acquired by possession of lands depends upon the claim accompanying it.’ Bedell v. Shaw, 59 H. Y. 46. By the terms of the covenant contained in the grant, the grantees undertook to construct the streets within three months after they should have been required by the grantors so to do, and, in case of their failure to perform, the grantors
    
      reserved to themselves the right to employ others to build the streets, or, at their option, to make the same themselves. There is nothing in the deed which gave the grantees or their assigns the right in any way to hasten the ■decision or action of the grantors with respect to the giving of such notice. The time when such requirement should be made, if ever, rested with the grantors. It may be presumed that the requirement will be made when the public interests require it. But because the grantors delay for public reasons the giving of such notice, or the making of the requirement, the grantees have no authority or right so to use and occupy the land so as by lapse of time to acquire a title thereto adversely to the grantors, and tiius defeat the very object for which the exception was made in favor of the public, represented by the municipal corporation. The city of Hew York received the premises in question by grant from the people of the state, and it may be presumed that they were to be used, in the interest of the public, in such way as the municipal government should determine. Although the precise lines of the streets in question were fixed by the grant, yet these lines might be changed by pfoper legal action or proceeding. And, should the plaintiffs seek to depart from the determined lines as fixed by the deed and map, and require adjoining land for the purpose distinctly covered by the grant to Hall, the plaintiff would have been compelled to acquire title to the ground upon which the streets as changed were to be constructed, by purchase or through legal proceedings instituted to acquire the same. The tentative character of the proposed plan, a possible alteration in the scheme, were risks taken by grantor and grantee, and, on the one hand, do not affect the rights of the grantee to the fee of the unexcepted premises, nor, on the other, do they nullify or modify or explain the exception in the grant. The defendants have so clearly conceded their possession as being only subject to the public title and right as to divest it of an adverse character, and the hostile claim interposed in this action and upon the trial is wholly irreconcilable with the admissions contained in the deed from the dry-dock company to-Law of June 4, 1870, and, as late as 1876, in the lease from Law to the ferry company of the claims and title of the city. The defendants’ claim, according to their deeds, is in recognized subordination to the title of the city of Hew York. Mere possession of real property does not establish the title thereto, for the possession is construed to be that of the true owner, unless it affirmatively appear that the occupier has laid claim to the freehold, and has ousted and expelled the true owner therefrom. To gain by adverse possession a freehold estate, the claimant must claim the freehold. Ricard v. Williams, 7 Wheat. 59; Varíele v. Jackson, 2 Wend. 166. The intent of the occupant to claim in hostility to the true owner, and actual continued hostile possession for a period of twenty years, are the requisites of a valid title by adverse possession.
    “The fact that the plaintiffs, through public officers who were charged by law with the duty of assessing and levying taxes, did assess taxes upon the structures erected by the defendants upon the premises in question, which the defendants and their predecessors in title have paid, does not estop them from claiming that they are the owners of the premises described in the complaint, or from insisting that they were at the time of the commencement of this action entitled to the possession thereof, liossire v. City of Boston, 4 Allen, 57; City of St. Louis v. Gorman, 29 Mo. 593. Although the plaintiffs, acting upon the rule of law that mere intrusion unaccompanied by the claim of title to the freehold does not constitute such an entry upon real estate as can ripen into an adverse possession, might suffer one who did not claim the freehold, or who admitted plaintiffs’ ownership thereof, to erect structures upon its vacant lands, the structures, when erected, would become subject to those provisions of the law which regulate the taxation of fixtures the fee whereof lay in the taxing power. The mere fact that the easement so created was determinable at the will of the taxing power would not render the users of the
    
      easement in a better position in respect to taxation than other owners or users of determinable easements. Until the easement should be determined, those using the structures in question enjoyed the protection of the laws and the government, and the mere determinability of their use does not affect the question of the right of the taxing authority to levy taxes upon the structures, and to enforce the collection of the same. It has been declared by repeated decisions that the person or corporation owning fixtures may be assessed therefor, although the ownership of the fee be in a different person,—even in the taxing power itself. Railroad Co. v. Commissioner, 82 25T. Y. 459, 19 Hun, 461; Railroad Co. v. Cassity, 46 $T. Y. 46. There can be no estoppel in favor of one who has full knowledge of the fact, and is not misled by a statement or representation. In other words, no man can set up another man’s act or declaration as the ground of an estoppel, unless he has been misled or deceived by it, and has done or omitted to do an act in consequence thereof. The case of Fletcher v. Fuller, 120 U. S. 534, 7 Sup. Ct. Rep. 667, to which I am referred by the learned counsel for the defendants, is an authority for the statement that the assessment of taxes on an entire parcel oareal estate to the person in possession under claim of title, and to his ancestors and privies in estate for over one hundred years, is powerful evidence for the claim of right to the whole lot; but it is quite clear that the present case does not come within those conditions, and is not disposed of by it. It clearly appears, as has been stated above, that the defendants have always known that they held the premises covered by the pier, and upon which they have made erections and improvements at the will and pleasure of the plaintiffs, and not otherwise. The deeds under which they hold advised them fully upon this subject; hence, they could not have been misled by the act of the taxing power as to the true nature of the plaintiffs’ title. 2 Pom. Eq. Jur. §§ 810-812; Bigelow, Estop. 467. The making of the pier in 1826, and its use in connection with the marine railroad for the business of dry-docking vessels, the construction of the racks and ferry structures, and other acts of the defendants by which the premises have been devoted to ferry purposes, from what has been said above, were not acts done in hostility to the plaintiffs’ title, but in subordination thereto, and, while this adds nothing to the claim of the defendants to a title by adverse possession, they cannot be interposed as an equitable estoppel, or otherwise, to the assertion by the plaintiffs of their right to the possession of the property at this time, and if, by the judgment of the court, the defendants are now compelled to surrender the premises to the owner, they are not to overlook the fact that they have had the value of the use thereof for many years, to their advantage and profit.
    “The learned counsel for the defendants makes the further claim that the city has no title to that portion of the premises lying east of the four-hundred foot line, the limit of the conveyance by the state to the city, under the act of April 3,1807, and claims also that by the act of April 13,1826, all that portion of the locus in quo lying east of this four-hundred foot line was vested in defendants. The act of April 13, 1826, was construed by the general term of the superior court in the case of Nott v. Thayer, reported in 2 Bosw. 10. The court held, (page 59:) 1 According to a true construction of this act [that of April 13, 1826] it simply confirms the validity of grants which had been previously made, in terms, to Tompkins street, and that it does not extend to that street grants which it had not in terras undertaken to convey to that extent.’ It follows logically that, whether it be regarded as a grant or as a confirmatory deed, the effect of the act of April 13, 1826, must be determined by the tenor of the original conveyance from the city to Hall, and its extent was governed by the limitation of the clause containing the exception in this latter instrument. If the construction given by me to that clause be correct, the city having reserved to itself the fee of the entire street, the fee of the street beyond the four-hundred foot line remained unaffected by the act. If the act
    
      failed to vest the fee of the street beyond the four-hundred foot line in the city, as claimed by defendants, it certainly did not vest the same in the defendants. But, whether the people of the state surrendered their rights in the soil of Tenth street to be made to the city by the act of April 13,1826, or no, the patent of 1871 vested in the plaintiffs a valid title to so much of the locus in quo as lay east of the four-hundred foot line. The fact that at the date of the patent a portion of the premises beyond the four-hundred foot line was occupied by the ferry-rack and pier—structures over which the water did not and could not flow—does not aid the defendants. The pier and ferry-rack were artilicial structures, and, though in a technical sense they may be termed real estate, they are in no sense land. This distinction was drawn by the court of appeals in the case of Smith v. Mayor, etc., 68 N. Y. 556. ‘ A pier is a large, bulky structure. It may cost many thousand dollars. If it is not real estate, what is it? It is not personal estate. If it is not real estate, it is because it is placed upon land belonging to another.’ Prior to the issuance of this patent, the wharves and docks along the river front were of three characters,—those belonging to the city, located on land belonging to the city; those belonging to private parties, located on land belonging to the city; and those belonging to private parties, located on land belonging to the state. It was the intent of this patent to vest in the present plaintiffs, to facilitate the duties imposed upon them by the provision of chapter 574, Laws 1871, the title to the real estate upon which piers of the latter class were located, and according to this intent the patent must be construed. The plaintiffs should have judgment for the possession of the property described, and for costs.”
    Judgment was rendered for plaintiffs, and defendants appeal.
    Argued before Van Brunt, P. J„ and Brady and Bartlett, JJ.
    
      Robinson, Scribner & Bright, (John IP. Dillon and IS. Randolph Robinson, of counsel,) for appellants. Henry R. Beehman, Corporation Counsel, and Frank, A. Irish, for respondents.
   Per Curiam. The judgment appealed from is affirmed, with costs, upon the opinion of the learned referee.  