
    William J. Ziegele and Others, Appellants, v. The Richelieu and Ontario Navigation Company and Thomas McMurray, Respondents.
    
      State lands — a license to build, a pier is assignable except as against the State—licensee estopped, to deny his right to assign—enjoyment of a dock by a licensee not necessarily exclusive.
    
    In an action brought to restrain the defendants from the use of a dock constructed over a portion of a pier upon State lands situated in the city of Buffalo, it appeared that on May 4, 1888, the Superintendent of Public Works issued a license to certain unincorporated clubs, managed by and in fact existing only in the person of one Louis Harbrecht, to construct the dock, reserving the right to annul the license at any time. The evidence showed that Louis Harbrecht and Louis Allgewahr, father-in-law of Louis Harbrecht and his partner in business, constructed the dock, each having a half interest therein, and that subsequently the plaintiffs succeeded, by instruments of assignment, to their rights.
    The defendants claimed to be entitled to use the dock by virtue of a permit from Louis Harbrecht, given subsequent to the assignments of the rights of Harbrecht and Allgewahr.
    
      
      Held, that Louis Harbrecht, as licensee of the State, had. a right tó transfer, his possessory interests, in the materials at least, of the dock, and that his transit r of his rights in the dock was valid against every one except the 'State, and that he was estopped from questioning his own right to make an assignment to the plaintiffs of his rights under the license; '
    That the plaintiffs as the transferees of Louis Harbrecht, were entitled to the possession as against the defendants •
    That the State alone could raise the question whether the assignment was valid; and that the licensees of Louis Harbrecht could not;
    That the plaintiffs had acquired all the rights and interest of Louis Harbrecht in and to the dock, subject, however, to the control of the Superintendent of Tublic Works.
    Semble, that, it did not follow that, because the plaintiffs owned the wharf, they had a fight to the exclusive enjoyment of it and were not obliged to allow others to use it. upon the payment to them of a reasonable compensation as wharfage.
    Appeal by the plaintiffs, William J. Ziegele and others, from, a judgment of the Supreme Court in favor of the defendants,- entered in the office of the clerk of the county of .Erie on the 2lth day of November, 1895, upon the report of a referee.
    This action was brought to restrain the defendants from the use of a dock situate near the foot of Ferry street in the city of Buffalo and between the Erie basin and the Niagara river on what is known ' as Bird Island Pier.
    
      George L. Lewis, for the appellants.
    
      Adolph Jdebadovj, for the respondents.
   Green, J.:

The plaintiffs claim tó' be the owners of the- dock, and entitled to the possession of' the same, through divers conveyances to- them of the interest of Louis- Harbrecht and Louis Allgéwahr, who, as is claimed by the plaintiffs, were the original owners of the dock.

The defendant company claims to be entitled to use the dock by virtue of a permit from Louis Harbrecht given in 1894;' and. that Louis Harbrecht alone was the original owner of the dock, and that the plaintiffs have no title'to the same.

May 4, 1888,. the State of New York, through its Süperinténdent -of Public Works, issued a license to the International Yacht Club,; tiie Atlantic Club and the Audubon- Fishing Club of Buffalo, to construct a dock over a portion of Bird. Island pier near the foot of. Ferry street in the city of Buffalo upon lands owned by the State, with the reservation of the right to annul the license at any time and compel the removal of the dock by the clubs. These clubs were unincorporated associatious, formed, owned, controlled and managed by one Louis Harbrecht, and had no existence beyond Harbrecht himself. Subsequently to the issuing of ■ this license a dock was built under this permit. Harbrecht claims that he built and became and still is the sole owner of the dock thus constructed. Louis Allgewahr, the father-in-law of Harbrecht, was at the time of the construction of the dock a co-partner of, and engaged in business at the city of Buffalo with Harbrecht. He testifies that the dock was built by the firm of Harbrecht & Co., which consisted of Louis Harbrecht and Louis Allgewahr, and that each owned an equal undivided one-half interest in the dock. It is admitted that such a firm was in existence at the time of the erection of this structure. Harbrecht himself admits that such co-partnership was in existence at that time, but testifies that it did not extend to this dock, and that Allgewahr never obtained any interest in that dock.

The referee finds upon this question as follows : Said Louis Harbrecht built the dock on the lands in question.” The referee does not find in express terms that Louis Allgewahr had no interest or title to such dock. The referee,, however, finds that, subsequently to the building of said dock, there was a transfer by Louis Allgewahr to the wife of Harbrecht of an lindivided one-half interest in said dock, and that subsequently thereto the wife of Louis Harbrecht transferred and conveyed tlie same undivided one-half interest in the dock to the plaintiff Daniel.E. Bailey; that this last instrument was given to secure the payment of the moneys agreed to he paid by a certain contract between Louis Harbrecht and Daniel E. Bailey. In that instrument, so executed by Louisa Harbrecht, the interest conveyed in the dock is described as follows: “ One equal and undivided half of the dock on Bird Island pier, south of Ferry street, built by the firm of Harbreehi c& Company, being all of the one-half right, title, interest and ownership which I the said Louisa Harbrecht now have, or ever had, in and to the said dock.”

It appears from these instruments that Louis Harbrecht must-have known that Louis Allgewahr had an interest in that property, and that it was treated in those instruments as the dock built by Harbrecht c& Co.

There is further evidence tending to show that, during the. time of the ownership of one-half of this dock by Louisa Harbrecht, Louis Harbrecht collected rents therefor and acted as the agent for his wife in respect to her interest in that dock. There is no claim that she ever had any interest in the same, except as she derived it from Louis Allgewahr. . -

The referee further finds that, on the 2-lst day of March, 1892, Louis Allgewahr sold and conveyed all his interest in the dock to the Buffalo and Grand Island Excursion Company and Arthur W„ Hickman. This company is a co-partnership consisting of all the plaintiffs except Ziegele and Bailey. Tie further finds that the grantees in that instrument paid for the interest of Louis Allgewahr in the same the sum of $1,500-. Hickman afterwards transferred his interest in the same to the plaintiff Ziegele. Notwithstanding Louis Harbrecht and his wife Louisa both testify that the wife never had any interest in that dock, the referee finds that Louis Harbrecht executed and delivered an instrument in writing purporting to convey an undivided one-half interest in the dock to Louis Allgewahr, and that Louis Allgewahr executed and delivered an instrument in writing purporting to convey the same undivided one-half interest in said dock to Louisa Harbrecht.

The referee further finds that. the interest thus conveyed to Louisa Harbrecht was, by her, sold and transferred to the plaintiff Bailey to secure the payment of moneys agreed to be paid by Louis' Harbrecht to the plaintiff Bailey. Evidence was given ■ showing conclusively that, at the time of the execution of this last instrument, Louis Harbrecht and his wife were both present and knew of the execution and delivery of the same. The instrument itself shows upon its face that the dock, which was transferred by Louisa Harbrecht in the interest of, and for the benefit of, her husband, was “ the dock built by the firm of Ha/rbrechi & Company ” This instrument alone is sufficient evidence of the interest of Allgewahr in that dock at the time of its construction. The findings of the referee are sufficient to establish that fact. And his findings in that respect are fully supported by the evidence of the witnesses and the written instruments produced upon that trial.

A careful examination of this evidence fully satisfies me that Louis Harbrecht and Louis Allgewahr constructed that dock; that it was a joint enterprise, and that they were equally interested in the same at the time of its completion. The evidence shows conclusively that thereafter Louis Harbrecht transferred his undivided one-half interest therein to his father-in-law, Louis Allgewahr, and that Allgewahr thereafter transferred the same interest to his daughter Louisa, the wife of Louis Harbrecht.

If this be true, then the plaintiffs are owners of that dock, subject to the right of the State to compel the removal thereof.

The referee, however, has found that The only title which the plaintiffs have, if any, in and to said dock is through or from the said Louis Harbrecht.” And he finds as conclusions of law that “ the plaintiffs have acquired no interest in the said dock,” and that plaintiffs’ complaint should be dismissed.

These findings are inconsistent with the other findings upon the subject of the title and interest of the plaintiffs to the dock, and are against the weight of evidence.

The referee, in arriving at his conclusions, must have labored under the erroneous impression that as a license had been granted by the State of New York to Louis Harbrecht for the erection of a dock upon thé lands of the State, Harbrecht, therefore, had no right or title to the dock which had been erected upon such lands and could not transfer or deliver that property. That the referee must have had that in mind appears from his twelfth finding of fact, wdiérein he finds “ That the State of New York has never revoked the said license, nor has it ever given the said Louis Harbrecht authority to sell, assign or transfer the same, but said license still remains in full force and virtue.” The decision of the referee must have been based largely upon that finding, for on no other hypothesis could his decision be sustained. The evidence certainly falls far short of sustaining the proposition that the- plaintiffs are not the owners of this property in question. The testimony of the -witnesses and all the written evidence points conclusively to the fact that the plaintiffs have shown title in themselves to, and the right to the possession of, the dock.

If the referee has based_ his decision upon the finding of fact that, because the State of New York has never revoked the license, nor given .Louis Harbrecht authority to sell, assign or transfer the same, and because that license still remains in full force and virtue, therefore, the title and the right of possession to that dock could not be transferred to these plaintiffs, then the decision must be reversed because his conclusion of law therefrom is erroneous. Neither an assignment of the license itself, nor a sale or lease of the property Constituting the dock, is prohibited by the statute. And since the fight to compel the removal of the dock, upon revocation of the license, was reserved to the State, it'would seem that the licensee would "have the right to remove it as his personal property. How-' ever this may be, he had a beneficial interest in the materials constituting the dock, which was a proper subject of sale or assignment, and would vest in the assignee all the property interests possessed by the assignor subject to any claim the State might see fit to make. The transfer of' the possessory interests of the licensee was valid against every one except the State.

If Harbrecht had demised the' dock for a term of years, the lessee would: be estopped- from "questioning the power or right of the lessor to grant the lease.

In Tilyou v. Reynolds (108 N. Y. 558) the plaintiff held certain-lands in the town of Gravesend under a lease from the com-. missioners and demised them to the defendant, and it was held that the -lessee was estopped from setting up, in defense to a claim for rent, that the lease to the plaintiff Was executed in violation of a statutory provision, and had been adjudged void in Tilyou v. Town of Gravesend (104 N. Y. 356).

In Mattoon v. Monroe (21 Hun, 74) the plaintiff held a license from the Canal Commissioners for tlie construction of dry docks on public lands, and executed a lease thereof to the defendants for a term .of years,, and the lessees were held liable for the rent, even after revocation of the plaintiff’s license and "the issuing of a" license to themselves.. It is true that the right or power of the plaintiff to grant -the: lease was not questioned, but it is evident from the opinion that, such an objection would not have been entertained, if it had been .raised, particularly in view of the fact mentioned' that the plaintiff had a "beneficial interest in the" erections, upon which he had-expended.a.largje-sum. of money.

In Mayor, etc., of New York v. Huntington (114 N. Y. 631) the court said that the defendant. having taken possession of the- property and entered upon the enjoyment of the right to collect wharf-age solely hy virtue of the contract made with him by the department of docks, cannot now be permitted to question the agreement under which lie has elected to take the benefits accruing to him as purchaser; that he must be held to be estopped from contesting the validity of the contract under which he has acquired possession of leased property.

It is well settled by authority that a lessee is estopped from questioning the title of his lessor, or the validity of the instrument hy which lie lias acquired possession of the leased property.

There is a manifest distinction between cases arising under contracts which are contrary to public policy, or mala in se or mala prohibita, and those which are claimed to be ultra vires. (See Woodruff v. Erie Ry. Co., 93 N. Y. 618.)

All estoppels, however, must be reciprocal and mutual, for, as the whole estate is created by estoppel, both parties must be bound or neither. (Taylor on Landl. & Ten. § 90; Welland Canal Co. v. Hathaway, 8 Wend. 484.)

And an agreement for quiet enjoyment is to be implied from the •terms of the lease. ( Vernam v. Smith, 15 N. Y. 327; Mayor, etc of N. Y. v. Mabie, 13 id. 153.)

If, therefore, the instrument executed were a lease and not an assignment, the lessor (Harbrecht) would he estopped from questioning its validity, or denying his right or power to make it. Here, however, the licensee has made an assignment of his righto and interests acquired hy or under the license, and the question.is whether- he is not precluded from denying his right or power to make it.

It is difficult to perceive any distinction, in principle, between the • ease of a lease for a term of years and an absolute assignment, of ■ the license itself, and the rights of property acquired under it.

If we assume that the principles governing the relations of land- '■ lord and tenant are not applicable to this case, then, upon the general principles of equity relating -to the respective rights- and liabilities of parties arising out of contracts between them, which have been partially or wholly performed hy either party, they are respectively precluded from raising, on behalf of the State, any questions as to the right or power of the other to make such contract of assignment. (See Woodruff v. Erie Ry. Co., supra.)

As a general rule, a party will be concluded from denying his own acts or admissions, which were expressly designed to influence the conduct of another, and did so influence it, and when such design will operate to the injury of the latter.

Good conscience and honest dealing forbid that he should be permitted to gainsay them. (Welland Canal Co. v. Hathaway, 8 Wend. 483.)

The licensees, or those claiming under them, cannot appear here as the representatives of the State and demand a judicial annulment of the assignment. Only the State, or its proper officers, can bring it in question, for they alone are interested.

In Mattoon v. Monroe (supra) the instrument was in the form of a lease, but it is doubtful if that was its legal character, since the lessor possessed no- interest in the lands, but simply a license to use them for the purpose specified. Really, it was nothing but an assignment of the license and docks for a term of years, subject to revocation by the State.

The United States statutes provided that all assignments and transfers of the right of pre-emption prior to the issue of a patent shall be void. Yet a question of forfeiture under such a statute cam only be raised by the United States. (Larison v. Wilbur, [N. Dak.] 47 N. W. Rep. 381.)

Nor is this requirement to be construed to prevent any pre-emptor from making a valid assignment of his possessory right. That is, while one cannot, before the completion of his title, assign his right of pre-emption, - so as to give another the right to demand a patent; yet he may enter into an agreement to abandon the land he occupies so- that another may enter upon it and initiate the right of preemption for himself. (O'Hanlon v. Denvir, 81 Cal 63; Pelham v. Service, [Kans.] 26 Pac. Rep. 29 ; Olson v. Orton, 28 Minn. 36 ; Myers v. Croft, 13 Wall. 291.)

“ These possessory rights and improvements placed on the soil were by the policy of the government generally protected, so far at least as'&"■ give-priority of the right to purchase when the land was offered-'for sale. * - * They (these rights) were' the subjects of bargain and sale, and, as among the parties to such contracts,, they were valid.” (Lamb v. Davenport, 18 Wall. 307.)

So, where a pre-emptor had mortgaged the property and then transferred it to one who assumed the payment of the mortgage, it was held that, although the mortgage was void under the laws of Congress, yet the grantee was estopped from showing that it was void. (Green, v. Houston, 22 Kans. 35. See, also, Drury v. Tremont Imp. Co., 13 Allen, 168.)

In Blakslee Manufacturing Company v. Blakslee's Sons' Iron Works (129 N. Y. 156) it was held that, although the statute declares the grant of lands under water to any person other than the owner of the upland to be void, its validity can be questioned only in a direct proceeding to review the action of the commissioners, or by action in equity to vacate the patent, where it affirmatively purports to have been executed to the owner of the upland. (See, also, N. Y. Central & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83.)

And that a title acquired by a foreign corporation in violation of a statute is valid against every one but the State. (See 24 Law. Rep. Ann. 330, note.)

For the foregoing reasons, and upon the principles stated, the court is of the opinion that the plaintiffs have acquired and possess, as against the defendants, all the rights and interests of Harbrecht in and to the dock in question, subject to the control of the Superintendent of Public Works. (1 R. S. [8th ed.] 772, § 177.)

But it does not follow that because an individual owns a wharf he also has a right to the exclusive enjoyment of it, for he may at the same time be obliged to allow others to use it upon the payment to him of a reasonable compensation as wharfage. (Dutton v. Strong, 1 Black, 23. And see 29 Am. & Eng. Ency. of Law, tit. “ Wharves.”)

No question has been raised here as to the right of the defendants to use the dock in controversy upon payment of a reasonable compensation ; and we do not deem it necessary for the decision of this case to determine the duty or obligation, of the. owner of the dock, or the rights of the defendants or other owners of vessels navigating the public waters of the State. The defendants claim the right to use this dock by virtue of a license or permission from - Harbrecht, and they should be enjoined only from claiming or asserting any such right, and from using said dock, or landing their boats at said dock under such alleged right.

■ The judgment herein should be reversed and a new trial ordered, with costs to abide the event of the action.

All concurred, except Ward, J., not voting.

. Judgment reversed and a new trial ordered, with costs to abide the event.  