
    Village of Mayville v. Wilcox et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October 23, 1891.)
    Í. Adverse Possession—Right to Build Wharves and Warehouses.
    A company owning land abutting on Lake Chautauqua laid out a street in 1804 which was 99 feet wide, and terminated at the water’s edge. In 1827 the court of common pleas made an order, under authority of Laws IN. Y. 1827, c. 150, granting permission to certain persons to erect a wharf on the land occupied by the water at the termination of the street, taking up 40 feet of the street, and extending 300 feet into the lake, with the privilege of erecting such warehouses as they might deem necessary for public convenience. This order was never revoked, and the grantees have continued in possession to the present time. The village of Mayville, which was incorporated in 1867, had conferred upon it by its charter the powers of commissioners of highways, but no express powers with respect to the navigable waters of the lake. The title of the grantees was repeatedly recognized. In 1»69 the village commenced condemnation proceedings to extend the street over their premises, but subsequently abandoned the attempt. It afterwards caused the premises to be assessed for taxation. Held, that under Code Civil Proc. § 369, the possession of the grantees for more than 20 years, under a claim of title based upon the decree of a competent court, was sufficient to establish a prescriptive right.
    S. Right to Erect Wharves—Order op Court.
    Laws N. Y. 1827, c. 150, provides that any person who owns lands adjoining Lake Chautauqua may erect wharves or store-houses upon any land covered by the waters of such lake adjacent to his own land, upon first making application to the court of common pleas and obtaining an order for that purpose. Held, that it need not affirmatively appear outside the recitals of the order that such person owns land adjacent to the lake, since it will be presumed that the court acted within its jurisdiction, and the statute does not require that the order shall contain the proofs on which it was founded.
    Appeal from judgment on report of referee.
    Action by the village of Mayville against Mariette Wilcox and another to restrain the erection of buildings. Judgment for defendants was entered in Chautauqua county. Plaintiff appeals.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Sherman S. Rogers, for appellant. Lorenzo Morris, for respondents.
   Macomber, J.

This action was brought to restrain the defendants from erecting buildings in front of the termination of Erie street, in the village of Mayville, abutting on the waters of Chautauqua lake. The plaintiff, which was incorporated April 19,1867, has, by virtue of its charter, the powers of commissioners of highways, under the general laws of the state, within the limits of Mayville. The Holland Land Company was the original proprietor of the land situated within the corporate limits of this village, and of the waters of Chautauqua lake. The lake is a navigable body of water, and sundry lines of steamers are now operated thereon for the purpose of conveying passengers and merchandise to and from various parts of its shores. The Holland Land Company laid out Erie street in the year 1804, the map of which (included in the map of the village) was filed in the county clerk’s office of Chautauqua county on the 23d day of February, 1829. The street was then 6 rods wide. In the year 1827 the court of common pleas, on proper application, made an order, dated the 27th day of June of that year, granting permission to John Dexter and Hezekiah Tinkom to erect a wharf on the land covered by the water at the termination of Erie street, and to extend it on a line parallel with the north-eastern line of Erie street, to the width of 40 feet, for a distance of 300 feet into the lake, with the privilege to erect on such wharf or pier such store-houses as they might think necessary for public convenience. This order has remained unrevoked. At the time mentioned the waters of the shore of Chautauqua lake, at this point, were shallow, riot exceeding the depth of 2 feet at a distance of 50 feet from the shore. In pursuance of the power given to Dexter and Tinkom by the court of common pleas, these persons did, in the year 1828 or 1829, erect a wharf and store-houses at the termination of Erie street, in accordance with the power thus bestowed, namely, taking up 40 of the 99'feet of the street at its intersection with the water, and carrying the wharf or pier into the lake a distance of 300 feet. These premises, for a width of 40 feet, have been in the possession and occupancy of the defendants and their grantors since the year 1828 or 1829. The wharf has not been used for about 20 years, and the buildings erected thereon by the defendants were destroyed by fire about the year 1883.

That the court of - common pleas had the power to make the grant above mentioned admits of no doubt, under chapter 150 of the Laws of 1827. Section 2 of that act is as follows: “And be it further enacted, that it shall and may be lawful for any person owning lands adjoining the Cayuga, Seneca, or Chautauqua lakes to erect any wharf or wharves, store-house or store-houses, upon any land covered by the water of such lakes adjacent to and bounding upon the land of such owners, and to use, occupy, and enjoy the same as if conveyed by the commissioners of the land-office, pursuant to an act passed February 6, 1824: provided, that nothing in this act shall be so construed as to authorize any person to erect a wharf at the termination of any highway so as to obstruct the passage of ferry-boats or any other water-craft: and provided, further, that, before any person or persons shall be authorized to erect any wharf or store-house in Chautauqua lake, such person or persons shall first apply to and obtain the consent and order of the court of common pleas of said county, which consent and order shall not be granted until the applicant or applicants shall first give at least three weeks’notice of such intended application, by publishing a notice in one of the newspapers printed in said county, and when such order and consent shall be obtained it shall forthwith be filed in the clerk’s office of the county of Chautauqua.”

The learned counsel for the appellant contends, notwithstanding the judgment of the court of common pleas, and the continued occupation thereunder by the defendants and their grantors, that the village of Mayville nevertheless has the right to maintain Brie street as a public highway to its full width of 99 feet, unobstructed, to the water’s edge. In this contention we cannot concur with counsel. Brie street was by the Holland Land Company opened and dedicated as a street in the year 1804. It was then, it is true, 6 rods wide. The public had received through the dedication made by the Holland Land Company no rights beyond a right of way to the waters of the lake. We know of no powers given to the village of Mayville to construct» wharves, and maintain them, upon these waters. The right of action underlying this suit seems to be based upon allegations that the defendants threatened to erect and maintain in front of such street within the limits of its lines, extended into the waters of the lake, structures and buildings, the erection of which, it is claimed, would prevent the plaintiff and the public from enjoying the frontage of Brie street upon the lake, and from using the same as an approach to or from the street, docks, or wharves that may be hereafter erected thereon, whereby the plaintiff would be deprived of its vested riparian rights. But it is quite evident that the plaintiff has no riparian rights over the waters of Chautauqua lake. It is a municipal corporation, without ownership of any highways or streets except in trust for public use. Its charter is silent upon the subject of any riparian right; and our attention has not been called to any statute which would give it any power to erect for its own purposes, or for the purposes of the commerce of the lake, piers or wharves out into the lake for its own use, to the exclusion of the public. It cannot be regarded as having any control over the navigable waters, unless such power is expressly conferred by statute. If the defendants have made, or if they now threaten to make, any structures into the lake, so as to impede navigation, it is not, in our judgment, the province of the village of Mayville to-call such action in question; but the same is cognizable only by the proper action in behalf of the people of the state, as the state has succeeded to the original rights of the Holland Land Company. Wetmore v. Gas-Light Co., 42 N. Y. 391. Furthermore, it appears that the occupation by the defendants and their grantors, which has been continuous since the year 1828, has been not of the whole of the foot of Erie street upon the lake, but of only 40 feet thereof out of the total width of 99 feet. There remains, therefore, to the village ample room of access to the lake, and it has not been deprived in any respect by the interference of the defendants with easy egress and ingress from the lake to the highway.

It is further claimed by counsel for the appellant that the order of the court of-common pleas above mentioned was ineffective, because it did not affirmatively appear, outside of the recitals of the order, that Dexter and Tinkom owned lands adjacent to the waters of the lake where the wharf was permitted to be extended. But in our judgment a presumption arose that the court acted within its jurisdiction, for it was a court of record. Moreover, the statute does not require that the order as entered shall contain the proofs upon which it was founded. The direction is that the order only shall be entered upon the record of the clerk’s office. Under the facts proved, the occupation by the defendants and their grantors since the year 1828 clearly establishes a prescriptive right, under a claim of title based upon a decree of a competent court having jurisdiction in the premises, specially bestowed by the statute above set forth. Code Civil Proc. § 369. The title of the defendants and their grantors has been repeatedly recognized by the plaintiff. In the year 1869 condemnation proceedings were instituted by the plaintiff to extend Erie street over the lands in question; but after a jury had been summoned for the assessment of damages, and an appeal had been taken, the proceedings were subsequently abandoned and discontinued. Since the incorporation of the plaintiff it has caused the premises and property of the defendants and their grantors to be assessed, and has exacted and received taxes thereon from the defendants and their grantors. Were it important or necessary to establish the fact that the plaintiff has ample access to the lake, it would be sufficient to point to the evidence, and to the accompanying map, which show, that it has control of Water street, which runs nearly at right angles to Erie street, and along the shore of the lake, and that such street affords all adequate facilities needed by the plaintiff. The judgment appealed from should be affirmed. Judgment affirmed, with costs. All concur. 
      
       Section 369 provides that where an occupant enters into possession of premises under claim of title founded upon the decree of a competent court, and there has been contin ued occupation and possession for 20 years, the premises are deemed to have been held adversely.
     