
    People v. Baltimore & O. R. Co.
    
      (Supreme Court, General Term, First Department.
    
    November 23,1888.)
    Wharves—Piers in East River—Obstructions.
    Under Laws N. Y. 1875, c. 249, authorizing the erection, with the consent of the-department of docks, of sheds upon piers in New York city, but prohibiting interference with free public use of any pier on East river “which has heretofore been used for the loading and discharging of sailing vessels regularly employed in foreign commerce, and having a draught of more than 18 feet of water, ” the courts will order the removal of a shed erected on such a pier, so as to interfere with its free-use as a highway, though erected under permit from the department of docks, since the wharves ana piers of New York city are hut extensions of the highways, and, being upon navigable waters, are wholly within the jurisdiction of the legislature.
    Appeal from special term, New York county.
    Action to restrain the Baltimore & Ohio Railroad Company from the use ,of, and to obtain an order'Tequiring it to remove, the sheds and structures erected by it upon pier No. 27, on East river, in the city of New York. The .defendant appeals.
    Argued before Van Brunt, P. J„ and Bartlett and Maoomber, JJ.
    
      W. W. MaeFarland, for appellant. Charles F. Tabor, Atty. Gen., and Win. R. Wilder, for respondent.
   Macomber, J.

The material findings of the learned trial justice are, in substance, that the shed which was erected by the defendant interferes with rthe use of the pier as a public highway, and that consequently the plaintiffs .are entitled to restrain such obstruction by injunction. Under the ancient .charters of the city of New York, and under colonial and state legislation .down to the year 1871, incumbrances and obstructions upon the wharves and piers, which might interfere with free navigation, seem not to have been perpiitteJ by law'. People v. Mallory, 46 How. Pr. 283; Commissioners v. Clark, 33 N. Y. 251. All changes made in the law by the act of 1871 were such only as raised the question whether or not the city of New York had the right to permit sheds or structures to be erected upon the docks for the aeeommoda,tion of individual or particular shippers, and to the exclusion of the public at ¡large. The decision already cited, however, seems to have been a finality of .that question, and thereby the right of the people, as represented by the legislature, was reasserted. People v. Macy, 62 How. Pr. 65. The decision of People v. Mallory, supra, was followed by chapter 249 of the Laws of 1875. The first section of that act legalizes the erection of sheds and of structures .upon piers and bulk-heads in the city of New York, upon the condition of obtaining the consent of the department of docks therefor, and declares the erections already made to be lawful. The second section thereof prohibits the .landing of any vessel at such pier or bulk-head without the consent of the .owner or lessee. The third section prohibits the interference with the free public use of the wharves, piers, and bulk-heads of the East river, although it preserves the existence of the sheds and structures then already existing upon .such docks and piers. This last mentioned portion of the act of 1875 is embodied in section 773 of chapter 410 of the Laws of 1882, commonly known as ■the “ Consolidation Act. ” The exception made by section 773 of the consolidation act is confined only to any wharf, pier, slip, or bulk-head “ which has heretofore been used for the loading and discharging of sailing vessels regularly employed in foreign commerce, and having a draft of more than eighteen feet .of water. ” The evidence is conclusive to the effect that for many years prior to the enactment of the act of 1875 this pier No. 27 had been used for the loading and discharging of sailing vessels of that description. As is determined by the course of legislation, and by the uniform decisions of the courts, the piers and wharves of the city of New York are but lateral extensions of the streets or highways, and, being upon navigable waters, are wholly under the jurisdiction of the people, as represented by the legislature, and no right ■to interfere therewith, to the detriment of navigation or to the obstruction of the free use of the public, can be bestowed by any local authority of the city, unless the power to permit such obstruction has been previously delegated by the legislature. Hence it is that any permanent structure which amounts to an obstruction to the public use of the pier as a public highway for the purposes of commerce, as the erection made by the defendant is shown to be, is such an obstruction as the people, represented by the attorney general, may ¡cause to be removed by a .suit for that purpose. It is not a sufficient answer for the defendant to show a mere permit given to it by the department of the ■docks, so long as the act of 1875, now embodied in section 773 of the consolidation act, exists. It follows, therefore, that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.  