
    Interborough Rapid Transit Company and Manhattan Railway Company, Appellants, v. The City of New York and Marcus M. Marks, President of the Borough of Manhattan, Respondents.
    First Department,
    March 3, 1916.
    Municipal corporations — power of commissioner of docks over Exterior street, city of Mew York — charter construed — power of dock commissioner to license construction and maintenance of conduits and coal conveyers under and over said street — injunction.
    Section 819 of the charter of the city of New York confers upon the commissioner of docks jurisdiction over the full width of Exterior street from the inner boundary thereof to the East river, and empowers said commissioner to regulate the transfer of goods or merchandise upon, over or under said street.
    Hence, where said commissioner of docks licensed the Manhattan Railway Company to construct and maintain intake and discharge pipes from and to the river under said street to obtain condensing water for use in its power house situated on Exterior street, and also licensed said company to maintain a coal conveyer over said street, it is entitled to an injunction restraining the borough president from removing or interfering with said structures.
    Page, J., and Clarke, P. J., dissented, with opinion.
    Appeal by the plaintiffs, Interborough Rapid Transit Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1915, denying their motion for an inj unction pendente lite.
    
    
      
      Henry J. Smith, for the appellants..
    
      William J. Clarice, for the respondents.
   Scott, J.:

The order appealed from denies plaintiffs’ motion for an injunction pendente lite restraining the president of the borough of Manhattan from removing or interfering with the intake and discharge tunnels and coal-conveying devices erected under and over Exterior street along the East river between Seventy-fourth and Seventy-fifth streets, connecting with plaintiffs’ power house abutting on said Exterior street. The tunnels are used to supply and discharge the water required for condensing purposes in the power house, amounting to 200,000 gallons per minute and are laid from said power house under said Exterior street to the East river. The coal-carrying device is in the form of a bridge erected over Exterior street about forty feet above the surface with a coal-hoisting device on the dock opposite the power house. The conveyers carry from 700 to 1,000 tons of coal per diem. The power house is erected on Exterior street between Seventy-fourth and Seventy-fifth streets, occupying the whole block front, and supplies the entire elevated railway system of the plaintiffs with power, except on a portion of the Sixth and Ninth avenue lines. The use of the intake and discharge tunnels and the coal conveyer is necessary, as matters now stand, for the operation of the power house.

It was made quite clear on the argument that there is no real desire on the part of the defendants to compel the removal and discontinuance of the said tunnels and conveyer, hut their claim is that plaintiffs have erected and are using said devices without lawful authority, and wish to compel plaintiffs to apply for and obtain from what defendants insist is the proper municipal authority a permit or franchise to continue the use and maintenance of said facilities.

There is nothing in the case which will require the taking of any evidence, the facts being all admitted, and the determination of the questions involved, being dependent upon certain statutes and written documents of record, will, therefore, be determinative of the action. The authority upon which plaintiffs rely consists of two agreements between the plaintiff Manhattan Bailway Company and the board of docks, one dated May 31, 1900, and the other dated July 21, 1910, and a permit or authorization from the Public Service Commission dated September 21, 1913. By the agreements above referred to the said Manhattan Eailway Company is given the right to construct and' maintain, during the term of the lease hereby demised and any renewals thereof, intake and discharge pipes for condensing purposes under the Marginal Street and through the bulkhead wall, and to erect on said bulkhead suitable coal receiving and ash discharging devices, with the privilege of placing coal and ash conveyors under and over the Marginal Street.”

If the board of docks had power to grant to the railway company the right to cross the whole of the marginal street by its tunnels and coal conveyer there seems -to be no doubt, and as I understand it no question is made, that the agreements constitute a sufficient permit and authorization so to do. The defendants claim, however, that, in so far as concerns the westerly sixty-five feet of said marginal street, the board of docks had no such power, and, therefore, that as to said portion of the street its attempted authorization was ineffective. The question involved is, therefore, merely as to which city department has been vested with power and authority to grant a permit for such structures.

Exterior street was laid out and established by chapter 697 of the Laws of 1887, as amended by chapter 272 of the Laws of 1888 and chapter 257 of the Laws of 1889. The 1st section of that act, as amended in 1888, reads as follows: c<§ 1. There shall be laid out and completed upon and after the filing of a plan therefor, and as provided by this act, an exterior street of one hundred and fifteen feet in width, extending along the westerly shore of the East river in the city of New York, from the centre line of East Sixty-fourth, street, as such line is and would be, if extended eastwardly into the East river, to the northerly line of East Eighty-first street, as such line is and would be if extended eastwardly into the East river.”

By the 2d section of the act the board of the department of docks was intrusted with the duty of determining upon a plan for the said street, and it was provided that the plan, when approved by the commissioners of the sinking fund, should be “ the plan according to which said street shall be laid out and completed. ” By the 4th section, as amended in 1889, it was provided that “ the grades of the whole of said exterior street shall be fixed by the said board of the department of docks with the concurrence of the commissioner of public works,” and as to the charge and control of the street when laid out it was provided as follows: “That portion of said street lying and being between its westerly line and a line drawn parallel with such westerly line, and sixty-five feet easterly therefrom, shall be and remain under the- exclusive charge and control of the department of public works, as is now provided by law for the other public streets in the city of New York, and the remaining portion of said street lying easterly of said sixty-five feet line shall be and remain under the exclusive charge and control of the said department of docks.”

It was also provided that “The said street, and the bulkhead forming its outer edge, shall be and remain at all times a public exterior street or wharf, for free and common use except as herein otherwise provided, and the same and the wharfage and emoluments, arising from the use thereof shall be the property of the corporation of the city of New York.”

I have quoted thus fully from the act establishing Exterior street to emphasize the fact, which seems to me to be of consequence, that but a single street one hundred and fifteen feet wide was provided for, not a street sixty-five feet wide, and a dock or wharf fifty feet wide, although a part of this street was ordained to remain under the charge of the department of public works, and a part under the charge of the department of docks.

The important legislative enactment bearing upon the question now under consideration is section 819 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, and Laws of 1913, chap. 327). This section was derived from section 712 of the New York City Consolidation Act (Laws of 1882, chap. 410), which wras itself frequently amended, and always in the direction of extending and increasing the authority and jurisdiction of the department of docks over the water front of the city and the lands adjacent thereto. (See Laws of 1884, chap. 517; Laws of 1887, chap. 567; Laws of 1890, chap. 482; Laws of 1892, chap. 158; Laws of 1893, chap. 397.) Finally section 819 of the charter conferred upon the commissioner of docks a broader power respecting marginal or exterior streets than had ever before been conferred upon the department of docks. It provided as follows: “The commissioner of docks shall have exclusive power to regulate the use of marginal streets so that the land and buildings upon all such marginal streets may be used to the best advantage in connection with the wharves and bulkheads; and the commissioner of docks shall have the power to regulate, by license or by any other suitable means, the transfer of goods or merchandise upon, over or under all such marginal streets; except that the said commissioner of docks shall not, under this section, have any power in respect to, or jurisdiction over, the public driveway authorized by and constructed under chapter one hundred and two of the laws of eighteen hundred and ninety-three and acts amendatory thereof (the speedway on Harlem river].”

It may well be true, as insisted by defendants, that this new enactment did not change or attempt to change the status of any street, or to convert the westerly sixty-five feet of Exterior street from a street into a wharf or bulkhead. Doubtless that sixty-five feet still remained a part of the street system of the city and so far as concerns its care and general control continued to he in the charge of the borough president, as successor to the former department of public works. But the power to regulate its use in regard to the transfer of goods, wares and merchandise upon, over and under it was distinctly conferred upon the commissioner of docks. I can find neither in the act of 1887 establishing Exterior street, nor in the sections of the charter from which I have quoted, any warrant for holding that the power given by the charter to the commissioner of docks was intended to be limited to the outer fifty feet of the street. Exterior street, as already pointed out, was established as one street of the width of one hundred and fifteen feet, and the authority to lay it out and to establish its grade for its whole width was from the first given to the dock department, and so far as I can find from an examination of the statutes, it has never ceased to be a single street for its whole original width. The declared purpose of the charter in conferring upon the dock commissioner power to regulate its use is “so that the land and buildings upon all such marginal streets may be used to the best advantage in connection with the wharves and bulkheads.” The lands and buildings upon a marginal street must of necessity lie upon the in-shore sides of such streets, and the wharves and bulkheads must, of like necessity, lie upon the off-shore sides. If the commissioner of docks is to regulate the use of such streets so that the lands and buildings may be used to the best advantage in connection with the wharves and bulkheads, and to that end is given power to regulate by license or other suitable means the transfer of goods and merchandise upon, over or under such marginal streets, that power to be effectually exercised must extend to the whole street lying between the lands and buildings on the one hand, and the wharves and bulkheads on the other. To confine it to the outwardly fifty feet of an one hundred and fifteen-foot street would be to neutralize the statute and prevent the doing by the dock commissioner of that which he is expressly authorized to do. To so hold is not in conflict with, but entirely in accord with Vilias v. Featherson (94 App. Div. 259), cited upon the briefs of both appellants and respondents. That case had to do primarily with the question whether or not the dock department could lease dock property for commercial purposes unconnected with water front usage, but in the course of the discussion reference was had to section 819 of the charter in the following language: “ The further provision of section 819 of the charter that the commissioner of docks should have the exclusive power to regulate the use of marginal streets so that the land and buildings upon all such marginal streets might be used to the best advantage, in connection with the wharves and bulkheads, did not refer to the land and buildings in the marginal streets, but to the abutting land and buildings, thus emphasizing the intention that these streets should be so used in connection with the wharves and the abutting land and buildings thereon as would best conserve the general purposes of commerce. For that purpose, undoubtedly, the commissioner could authorize the construction of machinery for loading and unloading ships, and carrying the merchandise therefrom to the adjoining property, although such a use would be inconsistent with a strict street use. * * * He is given authority to lease the wharves and piers and incidental authority in connection with such leases to control the marginal streets which are adjacent to such piers and bulkheads.”

For these reasons I am of opinion that the right given to the Manhattan Railway by the dock department in 1900 and 1910 was sufficient to warrant the construction and maintenance of the tunnels and coal conveyer hereinbefore described, and consequently that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted.

McLaughlin and Laughlin, JJ., concurred; Clarke, P. J., and Page, J., dissented.

Page, J. (dissenting):

This is an appeal from an order denying plaintiffs’ motion for an in j unction pendente lite to prevent the president of the borough of Manhattan from removing or interfering .with certain overhead and subsurface structures maintained by the Interborough Rapid Transit Company or its ¡.essor, the Manhattan Railway Company.

The plaintiffs’ power house is situated on the west side of Exterior street, between Seventy-fourth and Seventy-fifth streets. It also holds a lease of the bulkhead on the East river between Seventy-fourth and Seventy-fifth streets. The structures which the city authorities threaten to remove are the intake and discharge tunnels used to supply and discharge the water required for condensing purposes in the power house and a bridge erected forty feet above Exterior street, in which is a coal-carrying device connecting the power house with a coal hoist erected upon the bulkhead. The city of New York claimed that the bridge and tunnels are illegal structures, and unless the plaintiffs applied for a permit to maintain them the borough president was directed to remove them on December 1, 1915. The plaintiffs claim that the structures are lawfully in the street under a contract with the dock department, and that since 1902 the structures have been maintained under such contract, except a new intake tunnel was constructed in the year 1914 by virtue of a permit of the dock department under the direction and supervision of the Public Service Commission. The plaintiffs further contend that the occupation of Exterior street by the tunnels and the coal conveyer is a right necessary and incidental to the operation of a power house, and as such a necessary incident of its general franchise to operate a railroad by electricity. This plea of necessity in my opinion is entitled to little consideration. Even if we should concede that the manufacture of its own electric power is a necessary adjunct to the operation of its franchise, the transportation of coal by conveyers within streets of the city or the transportation of water by means of tunnels in the street is not necessary to the operation of a power house. No doubt with a power house situated as is this one, such transportation is more economical and of greater convenience than would be possible by other means, but this is not synonymous with necessity. The plaintiffs operate their road through a large portion of the boroughs of Manhattan and The Bronx. Direct access to the water front is possible in many. localities as near to its lines of road as the one in question, and I think we can take judicial notice of the fact that several large power houses for the manufacture of electric current, both for commercial and transportation use, are situated directly upon the water front. That electric current may be and is transmitted great distances from the place of manufacture to the place of use is also a well-known scientific fact. There is, therefore, not the same necessity for a close proximity between the power house and the road that would justify the appropriation of certain streets to its use. The case of Brooklyn Heights R. R. Co. v. City of Brooklyn (152 N. Y. 244), relied upon by appellants, is clearly distinguishable from the instant case. In that case the company was prohibited by its grant of franchise from locating its car barns on any of the streets imm ediately contiguous to its line of road, but was given authority to construct and maintain in said street [that upon which its road was to be constructed] and in such parts of those adjacent thereto as may be necessary, all necessary connections, switches * * * for the convenient operation of said road and the housing and care of its cars and other equipments * * The court said: “ When we consider the question of the existence of authority in the plaintiff to use these other streets, for the purpose of having a storehouse and of connecting its railroad therewith, I think we may readily dispose of it upon the theory that it was a reasonable necessity, impliedly, if not expressly, sanctioned by the law of its creation.” That case cannot be cited as an authority for the appropriation by a railroad corporation of rights in streets not expressly or impliedly within its grant merely because of convenience or economy of operation; nor, even on the plea of necessity, to appropriate to its use public or private property without compensation. The right to acquire property by eminent domain was given to such corporation that it might be able to acquire such property as was necessary for the proper operation of its franchise upon an adequate payment for property taken and for the reason that the use by it of such property as was necessary for its operation was to the public advantage and convenience. Whatever rights the plaintiffs have to use this street rest upon the permission given by the dock department. Undoubtedly the right to construct and maintain the' tunnels and the coal conveyer from the water front to the power house was expressly given by that department, and if it was within the powers of that department the city cannot disturb or interfere with the plaintiffs’ use of such structures. It is, therefore, necessary to consider the authority of the dock department over the .street. Exterior street from East Sixty-fourth street to East Eighty-first street was laid out and established under and by virtue of an act of the Legislature of the State of New York (Laws of 1887, chap. 697, as amd. by Laws of 1888, chap. 272, and Laws of 1889, chap. 257) which provided for an exterior street of 115 feet in width extending along the westerly shore of the East river from the center line of East Sixty-fourth street to the northerly line of East Eighty-first street. The plan for the street was to be prepared by the dock department, subject to the approval of the commissioners of the sinking fund, and the act provided (§ 2) that said plan on its approval shall be the plan according to which said street shall be laid out and completed,” and also “ the sole plan according to which any wharf, pier, bulk-head, basin, dock or slip or any wharf structure, or superstructure shall thereafter be laid out or constructed in that part of the water front included in and specified upon said plan.” It also provided (§4, as amd. by Laws of 1889, chap. 257): “ That portion of said street lying and being between its westerly line and a line drawn parallel with such westerly line, and sixty-five feet easterly therefrom, shall be and remain under the exclusive charge and control of the department of public works, as is now provided by law for the other public streets in the city of New York, and the remaining portion of said street lying easterly of said sixty-five feet line shall be and remain under the exclusive charge and control of the said department of docks.” Pursuant to the provisions of this act condemnation proceedings were instituted and title was vested in the city on confirmation of the report of the commission. The fee in the sixty-five-foot strip was condemned for street purposes and the expense was assessed and paid by the adjoining property owners, while as to the fifty-foot strip the fee simple was taken and the expense of acquiring it was paid by the city from the proceeds of the sale of dock bonds. (Laws of 1887, chap. 697, § 6; Laws of 1882, chap. 410, § 148.) The commissioner of public works was, by section 5 of the act of 1887, amended in 1889 as aforesaid, required to regulate, grade and otherwise improve “ that portion of said street hereinbefore placed under the charge and control of the department of public works” and “the department of docks is hereby authorized and directed * * * to regulate, grade and otherwise improve that portion of said exterior street which, by this act, is placed under the charge and control of said department of docks.” The department of docks is given power to lease the wharfage, and they may give an exclusive right to the use and occupancy by the lessee of that part of the street or wharf lying east of a line drawn parallel to and sixty-five feet easterly from the westerly line of said street. It is evident from these considerations that the sixty-five feet of the westerly portion of said street was not under the jurisdiction or control of the department of docks and that the jurisdiction and control of the department of docks was limited to the fifty-foot strip adjacent to the bulkhead. This is the clearly-expressed provision of law. While in the changes made necessary by the reclassification of many administrative departments by the Greater New York charter, I do not find anywhere an express repeal of the powers given to the commissioner of public works over this portion of Exterior street, the power has devolved upon the borough president, and together with other public streets certain powers have been given to the board of estimate and apportionment to grant permits or franchise rights' within it. Nor do I find in the various laws to which the appellant has referred anything that shows an intention of giving the department of docks jurisdiction and control over the westerly sixty-five feet of this street, or to change the purpose of its use from street to wharf purposes.

Section 819 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, and Laws of 1913, chap. 327) is a re-enactment of section 712 of the Consolidation Act of 1882 (Laws of 1882, chap. 410), as amended by chapter 517 of the Laws of 1884; chapter 567 of the. Laws of 1887; chapter 482 of the Laws of 1890; chapter 158 of the Laws of 1892, and chapter 397 of the Laws of 1893. As originally enacted, section 712 undoubtedly was limited in its application to such portions of the water front as were authorized by the 3d subdivision of section 99 of chapter 137 of the Laws of 1870, as amended by section 6 of chapter 574 of the Laws of 1871. By reference to these statutes it appears that the plans were to be prepared by the department of docks and were to 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 in the waters surrounding said city and for extending piers into said waters and erecting bulkheads around said city.” There is no mention in this act of the establishment, opening or use of public streets. The expenses of acquiring lands under water or uplands were to be paid from the proceeds of dock bonds authorized to be issued for that purpose. Such marginal streets, therefore, as were laid out upon the plan were a portion of the dock property and established for access to and the convenient use of bulkheads, wharves and piers shown upon the plans. Most of this property was formed by filling in of the land between high and low-water mark which already belonged to the city. For a detailed historical statement, see Langdon v. Mayor, etc. (93 N. Y. 129).

By chapter 517 of the Laws of 1884 the words “including the water front on the westerly side of the Harlem river from the easterly line of the Third avenue, where said line strikes said river, along the water front from said line to the northerly side of Eighty-sixth street on the East river ” were interpolated. In chapter 397 of the Laws of 1893 certain acts relating to the powers of the department of public works and other departments of the city government were expressly repealed, but the act under which the street under consideration was established and constructed was not mentioned.

Section 819 of the charter, by its terms, in so far as it relates to the repeal of laws inconsistent with that section, relates only to the territory embraced within that section, which, as we have seen, is such as appeared upon the plan authorized by the act of 1871. The premises under consideration were not in that part of the city covered by the plan of 1871, nor embraced in the territory from Harlem river to East Eighty-sixth street, but included in the plan authorized by a special act (Laws of 1887, chap. 697, as amd. by Laws of 1888, chap. 272, and Laws of 1889, chap. 257, supra), which, so far as the marginal street was concerned, created an entirely different condition, i. e., by creating a marginal street of fifty feet in width, similar in all respects to the marginal streets in the plan authorized by the act of 1871, and, in addition thereto, a public street sixty-five feet in width. In this public street there existed the usual easements of the public and abutting property owners, which did not obtain in the marginal streets under the plan of 1871 nor in the fifty-foot part of the street in question. Chapter 697 of the Laws of 1887, and the acts amendatory thereof, are not repealed by section 819 of the Greater New York charter, and are still in full force and effect. We call attention to the fact that the case of Vilias v. Featherson (94 App. Div. 259) related to the marginal streets as laid down on .the plan adopted pursuant to the act of 1871, and is not, for the reasons already stated, to he construed as dealing with the power of the dock department in relation to buildings abutting the public street in the instant case.

The right to construct a bridge over or tunnels under the street would argue the right of the dock department to build a railroad upon or elevated above the street, if the commissioner of docks should deem that to he a use to the best advantage in connection with the wharves and bulkheads. ” This right could not be conferred without the condemnation of, and compensation for, the taking’ of the easements of the abutting property owners in the public street.

It follows that in so far as the contract and permit of the dock department assumed to grant permission to the plaintiffs to build and maintain the bridge for coal conveyers over, or the tunnels under, the westerly sixty-five feet of the exterior street, they were void, and the plaintiffs are unlawfully maintaining such structures. We are of opinion that the use of these structures is so related to the railroad facilities and purposes that the hoard of estimate and apportionment has power to grant the right to their use and maintenance.

The order should be affirmed, with ten dollars costs and disbursements.

Clarke, P. J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.  