
    Henry Bedlow et al., App’lt, v. New York Floating Dry Dock Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887.)
    
    
      1. Riparian owners—Rights of, to land, below water—Bulkheads— Boundaries. '
    The city of New York, by the Dongan charter, received title to all the lands situate between high and low water mark, surrounding the island of Manhattan. By the Montgomery charter of 1730 there was granted to it all the lands under water for 400 feet from the low water mark into the East river, from the north side of CorlearsHook to Whitehall. The city was, in April, 1798, empowered to lay out streets and wharves in front of those parts of the city adjoining the rivers and along the rivers, as they might think proper, at the expense of the proprietors of the land adjoining or nearest and opposite to the said streets or wharves, in proportion to the breadth of their several lots, and by act of 1801 to direct piers to be sunk and completed in front of said streets or wharves, at the expense of' said proprietors, and if they should neglect or refuse to make the said piers the city was empowered to build them itself, and reserve to its own use all the wharfage derived therefrom; and it was also empowered, by act of 1806, to grant the right to make such piers, and the right of receiving the profits thereof, to any person or persons, in fee or otherwise, upon such terms as it might deem proper. Prior to November, 1806, one was owner of certain property in the city of New York, situate between Montgomery and Clinton streets, on the East River, to whom, his heirs and assigns forever, in that month and year, the city by deed granted, amongst other property, a lot of land opposite to that before-mentioned, and fronting on the East river, together with and singular the easements, etc., to the said lot of ground, belonging or in any wise, appertaining. By the said deed, the grantee, for himself, his heirs and assigns, covenanted that he or they would at their own proper costs and expense, build and erect a wharf, pier or street on the south side of the said lot of ground so conveyed contiguous to the East river, and to keep and repair the same at their own charges, which wharf, pier or street should be open to the inhabitants of the city of New York for use in the manner of the public streets of the city. Prior to 1834, a wharf, pier or street was built upon the before-mentioned premises by the grantee, the south side of which was coincident with the southerly side of the previously mentioned grant. From the evidence in the case, it was apparent that the bulkhead in front of the premises extended beyond the line of the conveyance by the city, and was situate entirely upon the land owned by the city. In 1830, the grantee of the before-mentioned premises died, and in September of 1834 his executors leased certain lots of ground, among which were those before-mentioned, together with all and singular the easements, etc., to the premises above described, belonging or anywise appertaining, and particularly the wharf and water privileges, to the extent of the right of said executors for the term of twenty-one years, with a covenant for two renewals. The lessees went into possession of the property leased .and improved the same. The city; in November, 1838, directed that a pier be built in the slip between Clinton and Montgomery streets, at the expense of the owners of said slip, under the direction of the street commissioner, the location of which was fixed in front of the premises leased.' By proceedings taken by the common council in December of 1840 it appears that public notice of the said resolution was given according to law, informing all those interested in the water front within the described limits that in event of their refusal or neglect to comply with the aforesaid direction and to contribute their proportionate shares of the expenses, they would thereby forfeit all their interests in the wharf thereunder constructed agreeably to the provisions of statute in such case made and provided. Pursuant to said notice the lessees under the above mentioned lease addressed a note to the street commissioner setting forth that they were lessees having the rights and privileges of the owners of the soil to the bulkhead between Clinton and Montgomery streets adjoining the projected pier, and expressing their willingness to build the said pier at their own expense, according to the ordinance of the common council directing the same. After the lapse of the period prescribed by law," during which no other parties expressed any intention relative to the matter, the street commissioner was authorized to permit them to build said pier at their own expense and for their own benefit. Thereupon one of the lessees, the other having assigned his lease to him, built the pier, and subsequently, in 1840, being desirous of mortgaging it to satisfy objections apparently having arisen to his title, received a confirmation of the permission granted by the common counc.l He then mortgaged the premises in. question as his own to divers people, and in 1848 the pier was conveyed by its then owners to these defendants by a full warranty deed, under which they have since remained in possession The trustees, under the will of the party to whom the premises were originally granted by the city, in June of 1857, gave a renewal of the lease to its then owners for a term of twenty-one years from May 1, 1856, the description of the property being similar to that in the original lease. At the termination of the renewed lease these plaintiffs paid the tenants in possession the value of the Anprovements upon the premises and entered upon the upland. The defendants still retain possession of the pier, refusing on demand to surrender the same to the plaintiffs. This action was brought to recover possession of the same, and the defendants, in their answer, set up the title derived from the lessee who had taken the assignment of interest from his co-lessee. Held, that there being no evidence in support of the proposition that the border premises granted in the conveyance above mentioned and made by the city coincided with low water-mark, there was no presumpthat it did so.
    2. Same—Rights of—Different classes of.
    
      Held, that riparian owners were not entitled as a matter of right to the soil under water in front of their uplands; that a distinction ^existed between the rights .of riparian owners of lands bounded by the sea or on navigable rivers where the tide ebbs and flows, and the rights of such owners of land bounded on rivers of upon the margins of the same above tide-water.
    3. Same—Right in case in question.
    
      Held, that the plaintiffs had no rights in respect to the lands below high water-mark, except such as they might have derived by grant from the city of New York.
    4. Same—Action for possession—When not well founded.
    
      Held, that whatever rights of the plaintiffs, if any might have been invaded by the construction of the wharf in question, it not being constructed upon land belonging to them, an action for its possession will not lie.
    By the Dongan charter of 1686 the city of New York was granted the title of all the land situate between high and low water mark, surrounding the Island of Manhattan. By the Montgomery charter of 1730 there was granted to the city of New York, from the north side of Corlears Hook to Whitehall, all the land under water for 400 feet from low water mark into the East river. In April, 1798, the corporation of the city of New York were empowered to lay out streets and wharves in front of those parts of the city adjoining the rivers and along the rivers as they might think proper, at the expense of the proprietors of the land adjoining or nearest and opposite to the said streets or wharves in proportion to the breadth of their several lots; and by the act of 1801 the corporation was empowered to direct piers to be sunk and completed in front of said streets or wharves at the expense of said proprietors, and if the proprietors should neglect or refuse to make the said piers the corporation were empowered to build the said piers themselves and receive to their own use all the wharfage derived therefrom; and by the act of April 2, 1806, they were also empowered to grant the right to make such piers and the right of receiving the profits thereof to any person or persons in fee or otherwise upon such terms as they may think proper. Prior to November, 1806, Henry Eutgers was the owner of certain property in the city of New York, situated been Montgomery and Clinton streets, fronting on the east river. In November, 1806, the mayor, aldermen and commonalty of the city of New York, by deed, granted to said Eutgers, his heirs and assigns forever, amongst other property, a lot of land opposite to that part of the ground hereinbefore mentioned, containing in depth on the west side ninety-four feet and on the east side eighty-six feet, and in front on the east river or harbor of said city ninety-two feet six inches, together with all and singular the easements, profits, commodities, advantages, emoluments, hereditaments and appurtenances to the said lot of ground belonging or in anywise appertaining. In said deed the said Henry Eutgers covenanted for himself, his heirs and assigns that he or they would, at their own proper costs and expense, build and erect a good, sufficient and firm wharf, pier or street of seventy feet in breadth on the south side of the said lot of ground conveyed in said deed contiguous to the East river, which wharves, piers or streets should be built, kept and repaired by the said Eutgers, his heirs and assigns at his and their proper cost, charges and expenses. It was also covenanted in said deed that the streets, wharves and piers so to be built should forever remain and be for the free and common passage of and public streets and ways for the said inhabitants of the city of New York and all others going and returning through or by the same in like manner as the other public streets of the said city. The deed also contains covenants as to the title and quiet possession.
    Prior to 1834 a wharf, pier or street was built upon the premises hereinbefore mentioned, such street being South street, and the southerly side of South street being coincident with the southerly side of the grant from the city to Eutgers. It appears, however, from the evidence in the case that the bulkhead at the time hereinafter mentioned in front of the premises hereinbefore mentioned as conveyed to Eutgers was more than thirteen feet in the East river beyond the line of the conveyance by the city to Rutgers, and was entirely situated upon lands belonging to the city. Rutgers died in 1830, and in September, 1834 his executors ' leased to Stevenson and Pierce certain lots of ground situate between South and Water streets, and among others the lots hereinbefore mentioned, together with all and singular the easements, profits, commodities, etc., to the premises above described belonging or in any wise appertaining, and particularly the wharf and water privileges to the extent of the rights of said executors for the term of twenty-one years, with a covenant for two renewals. Stevenson & Pierce went into possession of the property leased, and improved the same. In November, 1838, the corporation directed that a pier be built in the slip between Clinton and Montgomery streets, at the expense of the owners on the said slip, under the direction of the street commissioners. The location of the said pier was fixed in front of the premises occupied by Stevenson & Pierce. As appears from the proceedings which will be subsequently referred to, taken in December, 1840, by the common council, public notice of the said resolution was given according to law, informing all those interested in the water front within the limits described, that if they should refuse or neglect to comply with the directions aforesaid, and not contribute their relative proportions of the expenses, that they would thereby forfeit all their interest in the wharf arising therefrom, agreeably to the act of the legislature in such case made and provided. Pursuant to said notice, Stevenson & Pierce addressed a note to the street commissioner, setting forth that they were lessees having the same rights and privileges as possessed by the owners of the soil, to the bulkhead between Clinton and Montgomery streets, adjoining the contemplated pier, and expressing their willingness to build the said pier at their own expense, according to the ordinance of the common council directing the same. They were the only parties who signified any intention in the matter, and after the lapse of the period directed by law for that purpose, the street commissioner was authorized to grant permission to Stevenson & Pierce to build said pier at their own expense ' and for their own benefit. Thereupon, Pierce, Stevenson having assigned his interest to him, built the pier in question at an expense of some $12,000. In 1840, Pierce being desirous of mortgaging the pier, and some objections apparently having arisen as to his title, applied to the common council for the confirmation of the permission given by the street commissioner to build the pier in question, which permission was duly confirmed by a resolution of the common council, subject to any and all rights which the owners of the fee might at any time have, if any, in and to the same. Pierce mortgaged the premises in question as his own to divers people, and in 1848 the pier was then conveyed by the then owners thereof to the defendants by a full warranty deed, and the defendants have ever since remained in possession of the same. In June, 1857, the trustees under the will of Rutgers renewed the lease of Stevenson & Pierce to the then owner of the said lease, Algernon S. Jarvis, for a second term of twenty one years from'the first of May, 1856. the description of the property being the same as in the original lease. At the termination of the renewal lease, the plaintiffs paid the tenants in possession the value of the improvements upon the premises ana entered upon the upland. The defendants still retained the possession of the pier, and refused on demand to surrender the same to the plaintiffs. In 1882 the plaintiffs, claiming to be the owners of the pier, commenced this action to recover possession of the same. The defendants, answered, setting up the title derived from Pierce, and upon the issue thus joined a trial was had and judgment, rendered in favor of the defendants, and from such judgment this appeal taken.
    
      A. B. Conger and Herbert B. Turner,- of counsel, for pl’ffs and app’lts; E. N. Taft, of counsel, for def’ts and respt’s.
   Van Brunt, P. J.

It is claimed upon the part of the plaintiff that Rutgers, being the owner of the upland and the grantee of the city of New York of land to low water mark, his devisees had the rights of riparian owners to build wharves and piers. It is assumed in this proposition that Rutgers was the grantee of the city of land to low water mark. We fail to find any evidence to support this assumption. He was the grantee of the city of land to the south side of South street, as it was to be laid out under the covenants of the deed, from the city to him. Whether the south fine of South street coincided with the low water mark nr not does not appear, and there is no presumption whatever that it did.

It is also assumed that Rutgers, as the owner of the uplands, had some riparian rights derived from the common law independent of any statutory provisions regulating the procedure of the corporation of the city of New York in the improvement of its water front.

In this proposition the learned counsel seems not to have taken notice of the distinction between the rights of riparian owners of land bounded by the sea or on navigable rivers where the tide ebbs and flows, and the rights of such owners. of land bounded upon rivers or upon the margins of the same above tide water,

In the case of Furman v. New York (5 Sandf. S. C., 16), this distinction is expressly recognized, and it is held that by the common law the king is seized in fee of all the lands under the navigable waters of his realm, and is entitled to grant and convey them, and that he has the right of soil under all rivers within the flux and reflux of the sea, and that it follows from the nature of the property of the crown in the soil under water that riparian owners are not entitled as matters of right to the soil under water in front of their uplands. Upon the affirmance of the above case in the 10 N Y , 567, this principle was again enunciated and formed the basis of the decision.

The cases of Yates v Milwaukee (10 Wall., 497) and Weber v. Harbor Com’rs (18 id., 64), in no way militate against the rule above stated. The question as to riparian rights discussed in Yates v. Milwaukee did not relate to navigable waters wherein the tide ebbed and flowed, and in the second case cited only the rule as applicable to the first is affirmed. It is true that by the act of April 3, 1807, certain pre-emptive rights were given to riparian owners, but that act in no way related to land situated south of the northerly side of Corlears Hook, the location of the pier in question. The act of 1807 was a grant to the corporation of the city of New York of 400 feet into the East river from the northerly side of Corlears Hook. The plaintiffs therefore had no rights whatever in respect to the lands below high water mark except such as they may have derived by the grant from the corporation of the city of New York/ the owners thereof.'

It is true that by the acts of 1798 and 1801 above-referred to the corporation were authorized to direct piers to be sunk and completed at the expense of the proprietors of lands lying opposite to the place where such piers should be directed to be sunk; and that in the event of the neglect of said proprietors to sink or make such piers according to the directions of the mayor, etc., it should be lawful for them to sink and make the same at their own expense and receive to their own use, the wharfage, or to grant the right of making such piers and the right of receiving the profits thereof to any person or persons in fee or otherwise upon such terms as they might think proper. But in the event of a disregard upon the part of the corporation of these privileges which were extended by the acts of the legislature to the adjacent owners and the building of such piers by the corporation or the authorization of their being built by other parties, the adjoining owners did not become the proprietors of the piers thus built.

In the case of Whitney v. The Mayor, etc. (6 Abb. N. C., 330), where the question is discussed, the court say: '' Without pronouncing a definite opinion whether the proceedings of the corporation were so far regular as to put the respondent in the wrong and produce a forfeiture of his rights, it is enough to decide that inasmuch as the pier has been constructed, the respondent’s remedy, if any, is by an action for the specific wrong he has suffered for depriving him of the opportunity to contribute to the expense and have an interest in the pier to the same extent.”

The action in that case was brought upon the theory that the pier was '“’egal obstruction to the use of the plaintiff’s bulk-head ai hat the corporation were wrong doers.

The court i- ; “I am of the opinion that if it should be conceded that e corporation failed to give the respondent the requisite r ’ ce to erect, or contribute to the expense of erecting a pier t does not follow that that structure is a nuisance or a > jxpresture. The corporation was the exclusive judge of tñe propriety of constructing piers and of the places where they should be situated. This power was •committed to the common council for important public purposes having relation to the great city of which they were the local legislature. It was, however, to be exercised with a proper regard to the interests of riparian proprietors, but the structures were to be upon land under water, belonging to the city and not to the proprietors. It would, however, be likely to prejudice them by covering a portion of their water front, and to compensate them for this inconvenience they were allowed to have the direct profits arising from the piers if they would pay the expense of constructing them.

But it cannot be maintained because a directing portion of the statute has been disregarded that an important public work which the city had a right to construct is, therefore, to be regarded as a nuisance. If it were situated upon the respondent’s land the case would be different * * * If the respondent has sustained an injury in being deprived •of the opportunity which the statute intended to secure him to erect it himself and have the wharfage arising from it, he is entitled to his action for that specific grievance. This is not matter of form, for it maybe for aught that has appeared in this case that the enterprise of constructing the pier was a very unprofitable one, looking only to the direct revenue arising from it, and that the respondent could not, with a proper regard to his interest, have afforded to erect it. In such case his damage would be merely nominal.”

The case of Langdon v. Mayor, etc. (93 N. Y., 129), in no wav militates against the view hereinbefore expressed. In ' construing the grant from the city the court laid particular stress upon the fact that such grant naturally and obviously imported a perpetual grant of wharfage with a perpetual right of free access to the wharf from the adjacent water, and founded this conclusion upon the fact that they were-contracting in reference to what was then believed to be the permanent exterior water line of the city on the north-river, which line was represented as such permanent exterior line upon the map annexed to the conveyance. The action of Langdon v. Mayor was an action for damages-caused by reason of the erection of a new wharf or bulkhead' in front of plaintiff’s wharf and was in consonance with the rule laid down in such cases in the case of Whitney v. The Mayor. It would appear, therefore, that whatever rights of the plaintiff were invaded by the construction of this wharf, it not being constructed upon land belonging to the plaintiffs an action for possession will not-He.

It is, however, urged upon the part of the plaintiff that Stevenson & Pierce, the lessees of the plaintiff’s ancestor, acquired no rights to the pier except in that capacity, and that, therefore, the rights of their assignees terminated at the expiration of the lease, claiming that when a tenant of land acquires an interest in adjacent lands by reason of such-tenancy, and for the use of the leased premises, it enures tobas benefit only while the tenancy continues, and on the expiration of the tenancy reverts to the landlord.

To support this proposition various Engfish cases are cited and reference is also made to the case of Dempsey v Kipp (61 N. Y., 462), where this rule seems to be recognized in the opinion of the court.

A material distinction exists, however, between the rule claimed and the facts in the case at bar. It is necessary to-the rule that the interest acquired in the adjacent land's should be for the use of the leased property. There is no evidence in this case that the pier in question was built lor the use of the property leased by Stevenson & Pierce from the plaintiff’s testator.

Upon the trial it appeared affirmatively, by the evidence-of Mr. Jarvis that the pier was built for general commercial purposes, he stating that it was built for the purpose of having it for a wharf for the steamers that first began to-come to the port of- New York, the Sirius, the Great Western and then the British Queen.

It would therefore appear that the rule claimed on behalf" of the plaintiffs has no appHcation to this case. It further appears from the proceedings of the common council that the permission given to Stevenson and Pierce to construct-this pier was to be at their own expense and for their own. benefit It is true that the confirmatory resolution' was made subject to any and all such rights, if any, which the owners of the fee may at any time have in and to the same. What this phrase may mean does not clearly appear as the corporation was without dispute the owner of the fee. As has been already seen, whatever rights the adjacent owners of the uplands may have had, it did not give them the right to the possession of the pier after its construction, but simply to an action for damages because of the violation of their rights by this construction if such rights were violated. That it was not the intention of Stevenson & Pierce to construct this pier for the benefit of the Rutgers estate seems to be apparent from the fact that they at once proceeded to exercise absolute ownership over the same, mortgaging the same and conveying the same by a warrantee deed in 1848,

It further appears than this pier in no way interferes or communicates with the land belonging to the Rutgers estate. The bulkhead communicating with the pier "is from thirteen to sixteen feet south of the southerly line of the land granted to Rutgers by the deed, and the bulkhead stands upon land, the title to which belongs to the city, and in which the Rutgers estate has no interest.

Under all these circumstances it is difficult to see how the plaintiffs can succeed in establishing a right to the possession of the pier in question as claimed by them.

_ It has not been thought necessary to consider the exceptions to the evidence, as the evidence, if admitted, could not affect the legal propositions hereinbefore stated.

• The judgment appealed from must be affirmed, with costs.

Brady and Daniels, U., concur.  