
    In the Matter of the Application of the City of New York, Relative to Acquiring Title to Lands Required for the Opening of Canal Place from East One Hundred and Thirty-eighth Street to East One Hundred and Forty-fourth Street in the Twenty-third Ward, Borough of the Bronx, City of New York. North River Electric Light and Power Company, Appellant; City of New York, Respondent.
    
      Mott Haven canal—it is a private waterway and may be condemned—the filing of a map did not make it a public waterway-^nm' did chapter 5.44 of the Laws of . 1894.
    That part of the Mott Haven canal located between One Hundred and Thirty-eighth street and One Hundred and Forty-fourth- street, in the city of New York, although navigable by boats, is a private waterway,, and inay be closed ■ by the city of New York and appropriated to ordinary street purposes through. the medium of condemnation proceedings.
    The mere filing of a map of that portion of the canal, not accompanied by the> actual construction or use thereof, did not constitute it a public waterway. Chapter 544 of the Laws1 of 1894, entitled “An act toprovide for the 'construction of a bridge over the Mott Haven canal at One Hundred and Thirty-eighth street, in the city of New York,” did not constitute a legislative recognition of' the canal as a public waterway.
    Appeal by the North River Electric Light and Power Company 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 2-lst day of May, 1900, denying its motion for an order Tacating and setting aside an order theretofore made in the proceeding appointing commissioners, of estimate and assessment.
    
      Chapter 544 of the Laws of 1894, referred to in the opinion, is entitled, “ An act to provide for the construction of a bridge over the Mott Haven canal at One Hundred and Thirty-eighth street in the city of New York.”
    
      Charles A. Collin, for the appellant.
    
      John P. Dunn, for the respondent.
   Patterson, J.:

On the 13th of June, 1899, commissioners of estimate and assessment were duly appointed in this proceeding, which was instituted for the purpose of opening a street to be called Canal place over property constituting part of a canal or waterway between One Hundred and Thirty-eighth and One Hundred and Forty-fourth streets in the borough of the Bronx in the city of New York. The whole extent of the canal is from the northerly bank of the Harlem river to One Hundred and Forty-fourth street. It seems to have been construed in 1855 from the river to One Hundred and Thirty-eighth street and in or about 1870 to have been opened northerly to One Hundred and Forty-fourth street. The section north of One Hundred and Thirty-eighth street is the only part of the canal involved in this proceeding.

After the commissioners were appointed and' had taken the oath faithfully to perform the duties with which they were charged, the North River Electric Light and Power Company, which had not appeared on the application for the appointment of commissioners nor in any way opposed such application, moved the Supreme Court to vacate and set aside the order of June 13, 1899, principally on the ground that the city of New York was without authority and its officers had no jurisdiction, to close any part of the canal or waterway, its contention being, in the words of its counsel, that the city of New York has no right to lay out a street over a navigable watercourse connecting with the harbor and to destroy the watercourse by a solid filling and conversion into an ordinary street for vehicle and pedestrian traffic and that, therefore, the court had- no jurisdiction to make the order sought to be vacated.” The motion to vacate was in all respects denied and from the order entered upon such denial this appeal is taken. Without considering the regularity of the practice of attacking the order appealed from by such a motion as this, we are of the opinion that the order of the court below was properly made and that upon the facts as displayed in the record that part of the waterway between One Hundred and Thirty-eighth and One Hundred and Forty-fourth streets proposed- to> be taken for street purposes in this proceeding,, is not a public navigable waterway, such as the city of Hew York would be prohibited from closing and appropriating to street purposes by ordinary condemnation proceedings.

The appellant is the owner of a plot of ground with a frontage of 150 feet on the canal in the block bounded on the north by One Hundred and Forty-fourth street. It acquired title in 1892; has erected a valuable plant on its premises, and has used the canal acilities in the conduct óf its business. The importance of those^ facilities to the appellant is apparent; nevertheless, its right of way and easements in the canal are subject to being taken by the city, by due process of law, unless it is shown that, the canal, through its whole extent from the Harlem river to One Hundred and Forty-fourth street, is of such a character that it cannot be closed, or that the land over which it is constructed and the water runs cannot be diverted from one public use to another public use, for want of authority in the city of Hew York to make the change. That, upon the proofs, is not shown ; on the contrary, it is established that that part of the canal over which the street improvement is laid out is an artificial private way, and has not become a public way either by dedication, acceptance or user.

The land above One Hundred and Thirty-fifth street was prior to 1850 owned by Jordan L. Mott. In 1851 he received a grant of land under water, including an inlet running from about One Hundred and Thirty-fifth street to the Harlem river. Into this inlet flowed a small rivulet, southward from about One Hundred and Forty-fourth street. On July 12, 1850, Mott filed a map of a proposed canal between One Hundred and Forty-fourth street and the Harlem river, and subsequently, but before' 1855, dredged the inlet and built a canal from the Harlem river to One Hundred and Thirty-eighth street, then called Van Stoll street; but at that street the canal seems to have ended, for apparently the street was continuous ; there was no bridge spanning a watercourse and there was at that street no canal requiring a bridge. There does not seem to have been up to 1866 any dedication to public use of a waterway north of One Hundred and Thirty-eighth street; for the mere filing of a map, without the actual construction of the canal or the use of a waterway, is not sufficient to constitute, above One Hundred and Thirty-eighth street, a public waterway even under what is said by Dsmo, J., in Child v. Chappell (9 N. Y. 251). That a private waterway was contemplated and intended is one thing; appropriating and opening it to the public use is another. We do not see that prior to 1866 any such state of facts is disclosed as would authorize a finding that any public right existed in a canal above One Hundred and Thirty-eighth street. Mr. Mott doubtless could have widened or deepened the small brook or rivulet into a larger stream and opened it to public use, but he did not do so.

In 1866 Messrs. Rider and Conklin became the owners of the land which now belongs to the appellant and of other lands on both sides of the canal which, as stated before, did not extend at that time further north than One Hundred and Thirty-eighth street. At that street there was an embankment and culvert, and in 1869 Rider and Conklin obtained from the then proper authorities, viz., the trustees of the town of Morrisania, in the county of Westchester, permission to remove the embankment and substitute a drawbridge, and to extend the eanad northerly to One Hundred and Forty-fourth street. A controversy had arisen between the town and Rider and Conklin respecting the right of the former to drain sewage into the small stream or rivulet that flowed into the canal and to drain into the canal south of One Hundred and Thirty-eighth street. That controversy was settled by an agreement, recognizing the right of the town for a certain period and on certain conditions to use-the brook and canal for sewer drainage and Rider and Conklin were authorized to remove the embankment and culvert; to erect a drawbridge and extend the canal northerly from Yan Stoll (One Hundred and Thirty-eighth) street. They stipulated, however, to keep the drawbridge in repair ; to defray all the expense of maintaining it; to keep the canal in a suitable state for navigation, and it was also agreed that should they fail to fulfill the terms of their agreement the town might require that the canal be filled up at the cost of themselves, their heirs or assigns. Those provisions of the agreement and other-facts appearing in the proofs, such as the application of tolls collectibie by Rider and Conklin to keeping the canal in repair, show that there was not a perpetual dedication of the canal above One Hundred and Thirty-eighth street to the use of the public, but that although a navigable waterway was constructed, it was to remain a private way subject to discontinuance and destruction as a waterway for failure of the proprietors to observe conditions imposed by contract upon and assumed by the private owners as consideration for the privilege of constructing the way. That these owners did fail to fulfill their contract abundantly appears. Rider and Conklin were competent to enter into this agreement. The authorities of the town of Morrisania had the right to exact the conditions as terms of their assent to the removal of the embankment and culvert, which stood as lawful, physical barriers to the extension of the canal, and those who claim under Rider and Conklin, as these appellants do, have no other right in the canal than they had. It seems to us, therefore, that this canal above One Hundred and Thirty-eighth street did not become a public navigable waterway in the sense that would disable the municipal authorities from closing'it.

Nor did any subsequent acts of the constituted public authorities make it such. It was doubtless navigable by boats, but it was in reality a private affair. The act of 1894 (Chap. 544) cannot be regarded as a legislative recognition of* the canal as a public highway. Its terms sufficiently show that,. even if one. portion of it may be unconstitutional, and the legislative intent is to be gathered from the whole act. Nor can it be justly said that any of the acts done by the town of Morrisania or by the dock department of the city of New York, amount to an acceptance of the. canal as a public highway, or that there was such a user by the public as constituted the canal a public waterway. (Speir v. Town of New Utrecht, 121 N. Y. 429.)

The order should be affirmed, with costs.

Van Brunt, P. J., O’Brien, Ingraham and Laughlin, JJ., concurred.

Order affirmed, with costs.

Note.—The rest of the cases of this term will be found in the next volume, 65 App. Div.— [Ref.  