
    THE PEOPLE on rel. WARD a. KELSEY.
    
      Supreme Court, Second District; General Term,
    
      Sept., 1862.
    Wharf.—Landlord and Tenant.—Bent.—Summary Proceedings.—Trial by Jury.
    A wharf or pier, reclaimed from tide-water hy embankment or by raising the bottom with stone, earth, or other material, is a tenement within the meaning of 2 Rev. Stat., 512, which authorizes summary proceedings in favor of a landlord to recover the possession of houses, lands, or tenements.
    An agreement to construct a wharf, to be occupied when finished, by the grantee,
    
      at a stipulated rent, accompanied by words of present demise, operates as a lease.
    When the State makes a grant of land, covered with the waters of a bay or navigable river, and the grantee reclaims and raises it above the surface of the water, he is invested with all the lights that pertain to the ownership of land.
    Whenever the relation of landlord and tenant is made out in summary proceedings to recover the possession of demised premises, the tenant is estopped from disputing the title of his landlord.
    In summary proceedings to recover possession of demised premises, it is not competent for the tenant to show a breach of the landlord’s agreement to construct the premises in a proper manner. The tenant cannot withhold both the rent and the possession,
    Wherever trial by jury is authorized, the presiding magistrate has power to charge the jury upon the law of the cause.
    Certiorari to the city judge of Brooklyn.
    The writ was issued on the petition of Robert M. Ward, Walter S. Gove, and Edward P. Morris, for the purpose of reviewing certain summary proceedings to recover the possession of a wharf, which were instituted by Charles Kelsey, as landlord, against Ward, Gove & Morris, as tenants. Kelsey had rented to Ward & Gove certain storehouses and a pier at the foot of Sedgwick-street, Brooklyn, together with his right, title, and interest in the water in front thereof. A year afterwards he agreed in writing to build in a certain manner, and let to Ward, Gove & Morris a structure alongside the pier, to be called “ an addition to the pier,” and they agreed to hire the same from him at $1,700 per annum. Ward, Gove & Morris entered into possession of this addition, January 1,1860, and continued to occupy it until January, 1862, when, no rent having been paid, summary proceedings were instituted, because of non-payment of the rent for the year 1861, before Hon. George G. Reynolds, city judge of Brooklyn, which, after a trial by jury, resulted in a warrant under which the tenants were dispossessed.
    The tenants now brought up the proceedings for review by certiorari.
    The objections raised appear sufficiently in the opinion of the court.
    
      Skeffington Sanxay, for the relator.
    I. The premises are not shown by the proceedings to be houses, lands, or tenements; an addition to a pier, which had been hired and occupied by two of the parties, is neither.
    II. It does not appear that the addition is in the city of Brooklyn, or county of Kings. The premises are clearly in the county of New York. (1 Rev. Stat., 2.)
    III. It does not appear that the conventional relation of landlord and tenant existed. (4 Den., 185 ; 5 N. Y., 383 ; .5 Wend., 281; 9 Ib., 227.)
    IV. A wharf is a mere franchise. (Wiswall a. Hall, 3 Paige, 313; 2 Den., 625.)
    Y. The city judge had no right to charge the jury. The - statutes relating to summary proceedings are in derogation of the common law, and must be strictly construed.
    
      Britton & Ely, for the respondent.
    I. A wharf or pier extending into a navigable stream may be the subject of the relation qf landlord and tenant, and of summary proceedings. A pier is both land and a tenement. It rests upon and is built into the soil. Whether built of wood, on piles, or of stone, it is just as much land as though raised above the surface of the water, by deposit of earth. It is per se land and nothing else. (Co. Litt., 4 a; 3 Kent Com., 402; 2 Blackstone Com., 16, 17.) Hor is it any answer to this view that the rights acquired by the use of the pier amount only to a franchise. Trespass could be maintained for an injury to the pier, which cannot be for an injury to an incorporeal right. (Wilson a. Smith, 10 Wend., 324; Child a. Chappell, 9 N. Y., 251, 252.) A bridge is not a franchise, although the right to erect it and take toll may be. Jhe relators are estopped from disputing Kelsey’s title : for the purposes of this proceeding he is the owner in fee. (Ingraham a. Baldwin, 9 N. Y, 45 ; Jackson a. Whedon, 1 E. D. Smith, 141.) The act of 1836, eh. 484, empowering Kelsey to erect the pier, conferred upon him a qualified interest quite sufficient to enable him to sustain this proceeding.
    II. That the pier was not built in the manner and of the materials agreed' upon, was immaterial in this proceeding. The pier being finished and the relators having taken possession, the relation of landlord and tenant commenced, and the facts alleged in the affidavit of the landlord, and controverted by the tenants, as allowed by the statute, were all which could be tried in this proceeding. (Duigan a. Hogan, 1 Bosw., 646 ; S. C., 16 How. Pr., 164; La Farge a. Mansfield, 31 Barb., 345.)
   By the Court.—Brown, J. —

On the 27th of September, 1858, Robert M. Ward and Walter S. Gove, two of the relators, by a lease of that date, became the tenants of the defendant, Charles Kelsey, of certain storehouses and a pier at the foot of Sedgwick-street, in the city of Brooklyn, together with all Kelsey’s right and title to the water in front thereof. The term was for ten years from the first of February, 1859, at an annual rent of $10,000. They entered into possession of the demised premises, and have so remained in possession since the commencement of the term. On the 9th day of June, 1859, Kelsey, by another agreement in writing, made with Robert M. Ward, Walter S. Gove, and Edward P. Morris, the relators in O this proceeding, bearing date on that day, by which he agreed to build an addition of 30 feet in width to the pier, beginning with said addition 40 feet out from the bulkhead and extending out to the outer end of the pier. He was to complete the same before the 1st of January thereafter.

Ward, Gove & Morris agreed to pay to Kelsey the sum of $1700 per annum as rental for such addition, from the time of the completion of such addition to the end and termination of the lease before mentioned, to Robert M. Ward and Walter S. Gove. The agreement then proceeds in the following words:

Said Kelsey agrees to let, and by these presents does let, unto said Ward, Gove & Morris, the said addition to the pier (in consideration of the rental above stipulated), from the time df its completion to the end and termination of the lease of the present pier. And said Kelsey agrees to build a good and substantial addition to the pier, as regards strength and good material.”

The construction of the pier, the entry of Ward, Gove & Morris upon the demised premises, and their occupation by them, the rent in arrear, and the holding over, without the permission of Charles Kelsey, after demand and default in the payment of the rent, are facts found affirmatively by the jury, as appears by the return of the city j udge of Brooklyn to the writ of certiorari, and are to be taken as true for all the purposes of this examination and decision.

Thé first objection taken to the regularity of the proceedings before the city judge of Brooklyn is, that he acquired no jurisdiction to act in the matter, because the statute in respect to summary proceedings to recover possession of lands relate to the tenants of any houses, lands, or tenements, and that a pier erected in a navigable river is not within the meaning of either of these terms. Hereditament would have been a more comprehensive term.

But few persons, I think, would entertain any doubt that a pier of ground reclaimed from tide-water by embankment, or by raising the bottom by filling with stone, or earth, or other material, in the manner in which piers and wharves are constructed above the surface of the water, would be regarded as land. Where the reclamation is permanent and durable, what is it, if it is not land ? Be that as it may, the word tenement signifies every thing which may be holden, if it be of a permanent nature, and a wharf or pier is so permanent that it becomes a part of the soil and freehold itself.

It is also objected, that the written instrument of the 9th of June, 1859, is not a lease, and did not create between Kelsey and Ward, Gove & Morris the relation of landlord and tenants. We are to look at the intention of the parties. The instrument is not an agreement for a lease to be executed at a future time. It contemplated no new instrument. The premises demised were to be fitted for the use of the tenants, and in part created ; for the pier was to be created and raised above the waters of the river or bay; so as it might be fit for human occupation. But when completed, the instrument took effect as a lease. The words used are words of present demise—“ Kelsey agrees to let and by these presents does let unto said Ward, Gove & Morris the said addition to the pier,” reserving rent. As soon as Ward, Gove '& Morris entered upon the pier and took it into their possession, the relation of landlord and tenant commenced, and existed at the time the summary proceedings were instituted. The agreement was not a grant of the right to take wharfage, which is an incorporeal right, but it was a lease of corporeal property for 'a term of years, carrying with it the right of occupation and enjoyment.

The counsel for the relators argues that a wharf is a mere franchise to collect wharfage. It belongs to the public at large, for commercial purposes, and there is no element of property in it but the franchise to collect wharfage. This certainly is novel doctrine. The people of the State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all the lands within the jurisdiction of the State: lands above as well as below tide-water; and may, through the legislative power, grant to private uses the one as well as the other. The State makes a grant of lands covered with the waters of a bay or navigable river, and the grantee reclaims and raises it above the surface of the water. Why shall he not be invested with all the rights that pertain to the ownership of lands.

The title of Charles Kelsey to the pier cannot, however, become the subject of inquiry here. Whenever the relation of landlord and tenant is made out in summary proceedings, to recover the possession of the demised premises, certainly the tenant is estopped from disputing the title of his landlord. (Jackson a. Smith, 7 Cow., 717; Jackson a. Spear, 7 Wend., 401; Ingraham a. Baldwin, 9 N. Y., 45.)

The counsel for the relators, upon the hearing, offered to show that the addition to the pier was not built by the defendant in a good'and substantial manner, equal in any respect to the old pier, as regards strength and good material.

This evidence was' objected to by the counsel ■ for the landlord, and the objection sustained by the judge—the relators excepted to the decision. The failure to construct the pier in conformity with the stipulation of the agreement, might have constituted a good defence to an action upon the lease to recover the rent. But it is no defence or answer to the claim of the landlord to have the possession restored to him. One of the questions of fact submitted to and affirmed by the jury is, that the tenants took possession of the demised premises under the lease. They thus became vested with the term. They cannot now refuse to pay the rent, and at the same time retain the possession and enjoyment of the premises against the claim of the landlord. They have their election, to pay the rent, or restore the possession when demanded. They cannot withhold from him both the rent and the possession. (Lafarge a. Mansfield, 31 Barb., 345; Duigan a. Hogan, 1 Bosw., 646; S. C., 16 How. Pr., 164.)

When the evidence was closed, and the questions involved were about to be submitted to the jury, the judge proceeded to charge them upon the law of the case. Whereupon, the counsel for the tenants objected, that there was no legal right vested in the magistrate in summary proceedings to charge the jury. Several questions of law arose in the progress of the trial, with which it cannot be supposed the jury were conversant, and which it was of some consequence should be rightly comprehended, before they could act intelligibly and sensibly.

The defendant insists that they were not to obtain a knowledge of the law from the judge, and that whatever he said in respect thereto, however just and true, was an error, for which this court should reverse the proceedings.

This is a most extraordinary proposition. There is no express authority and direction contained in the statute concerning summary proceedings to recover the possession of lands (2 Rev. Stat., 417), that the judge shall instruct the jury upon the law. Hor are there any express words authorizing him to swear the witnesses, or to say what is to be received as evidence and what not; nor even to preserve order and decorum during the trial. Yet no one would think of disputing his authority to do all these things. Without it, the trial could not proceed, and the remedies provided by the act could not be obtained. All these powers, as well, as that to instruct the jury, are to be implied. Where the facts upon which the summons was issued are denied by an affidavit, the matters controverted are to be tried by the magistrate or by a jury, provided either party at the proper time demand a jury (§ 31). The matters controverted are those facts upon which the summons was issued and denied by the affidavit of the person in possession of the premises. The legal questions are still, however, to be determined, as all such issues are certainly determined by the judge holding, the court or conducting the proceedings. There is to be a trial by a j nry. Trial is the examination of the matter of fact in issue. “ Trial by j nry, called also trial par pais, or by the country, a trial which hath been used time out of mind in this nation, and seems to have been coeval with the first civil government thereof.” (3 Black. Com., 349.)

This commentator then proceeds to describe how the jury are to be summoned and selected, how the testimony is to be received and the witnesses examined, &c., and says, “ When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury, omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and gives them his opinion in matters of law arising upon that evidence.”

When our statutes speak of trial by jury, they mean a trial conducted in the manner described by the English commentator. Jurists and lawyers have no conception of a well-conducted trial by jury, in which the charge of the judge upon the law of the case is omitted.

Numerous other questions were raised upon the hearing, which I decline to consider.

The proceedings should be affirmed with costs. 
      
       Present, Emoit, P. J., Brown, Scrugham, and Lott, JJ.
     