
    The People of the State of New York vs. Cornelius Vanderbilt.
    The act of the legislature of March, 1820, authorizing the corporation of New York to extend the battery into the river not exceeding 600 feet, vested in the corporation the title to the soil under the water so to be filled in, but limited the use of the land so to be made out of the water, to be for a public walk, and for erecting buildings and works of defense thereon, but without any power to the corporation to dispose of the same for any other use or purpose whatever, and without any power of selling it, or any part thereof. Held that this restriction, in the act, prevented the corporation from selling or otherwise disposing of any part of the land so to be acquired, for any private purpose whatever.
    
      Held, also, that any grant or other conveyance of the land, for any private purpose, would be void; and that any attempt to use the land for purposes forbidden by the grant, would justify the people of the state in applying to a court of equity to prevent such a breach of the condition in the grant, independent of the act of 1857, establishing an exterior line and prohibiting the extension of any piers beyond that line.
    
      Held, further, that the passage of the act of 1857 did not deprive the grantors of that right; notwithstanding that act provides a method by which, after a pier or other obstruction to the navigation has been erected, it may he removed.
    The existence of the power to compel the removal of "an obstruction," after it has been created, does not prevent an application to the court to prohibit the erection of such obstruction.
    If there is no legal authority for the erection of a pier, in a navigable river, such pier will be a nuisance per se ; and no evidence is admissible to show that though illegal, it will do no harm.
    APPEAL from a judgment entered at a special term. The action was brought to restrain the defendant from erecting a pier in the waters of the harbor of Hew York, south of pier Ho. 1, Horth river, opposite the battery and Battery place. The title of the people of the state to the bay and harbor of Hew York, and their sovereign right to the use and enjoyment thereof, for the purposes of commerce and navigation, free from all interruption and encroachment, were alleged in the complaint, and not denied in the answer. The judge before whom the cause was tried, at the circuit, found the following facts:
    1. The defendant heretofore, after the 17th day of April, 1857, and before the commencement of this action, entered into and upon the waters of the harbor of Hew York at a point south of the pier known as pier Ho. 1, Horth river, and west of the battery, and outside of and beyond the existing pier line designated and established in and by the act of the legislature of the state of Hew York, entitled “An act to establish bulkhead and pier lines for the port of Hew York,” passed April 17, 1857; and commenced and continued the erection of a pier in said waters, and was at the time of the commencement of this action engaged in the erection of a section of said pier, commonly called a “crib,” being a large and permanent structure sunk to the bottom, and extending or to be extended upwards to and above the top of the water, and filled in with stone, and designed as a section of a pier, to be extended and maintained from the foot of Battery place to and beyond said crib, parallel to said pier Ho. 1; all which proposed pier, if erected, would be outside of and beyond the aforesaid exterior line.
    2. That the legal title to the soil under water on which said crib is erected, and said proposed pier is designed to be erected, was prior to 1821 vested in the plaintiffs, and that said plaintiffs have made no conveyance or grant thereof, noi* have they given any rights of property or occupation, or other privilege therein, except the grant to the mayor, aldermen and commonalty of the city of New York, contained in the act of the legislature of the state of New York, entitled “An act to provide for the expense of extending the battery in the city of New York, and for other purposes,” passed March 27, 1821, which last mentioned act provides as follows: “That it shall be lawful for the mayor, aldermen and commonalty of the city of New York to extend that part of the city usually called the battery, into the bay and North and Bast rivers such distance as they may deem proper, not exceeding six hundred feet; and further, that all the title of the people of this state in and to the land and land under water in front of and adjoining to the said battery, and extending from thence into the bay and the North and Bast rivers, a distance not exceeding six hundred feet, shall be and the same is hereby vested in the mayor, aldermen and commonalty of the city of New York and their successors for ever, to remain for the purpose of extending the said battery for a public walk, and for erecting public buildings and works of defense thereon, but without any power to dispose of the same for any other use or purpose whatsoever, and without any power of selling it, or any part thereof.”
    3. That before such erection of said pier was commenced by the defendant, a certain resolution had been passed by both branches of the common council of the city of New York, and approved by the mayor, on the 16th day of May, 1853, of which resolution the following is a copy: “Resolved, that permission be and it is hereby granted to 0. Vanderbilt, Esq. to widen a small pier, south side of pier No. 1, North river, on the southerly side, so as to make the same forty feet wide, and that it be extended parallel with pier No. 1, to the exterior line, at a distance of 150 feet from said pier, under the direction of the street commissioner;” and that the defendant claimed to erect said pier in pursuance of said resolution.
    4. That the crib or pier, in the erection of which the defendant was engaged as hereinbefore stated, was within the space of six hundred feet, in the said act of 1821 mentioned, and was upon the land under water in front of and adjoining to the battery described in the said act, and was also within the space within which permission to extend a pier was given to the defendant by the said resolution of the common council of the city of New York, dated May 16, 1853.
    5. That afterwards, and before the commencement of this action, the common council extended the battery beyond the small pier referred to in the said resolution, so as to include the said small pier and destroy the same, the made ground of the enlargement reaching and extending beyond and including the said small pier.
    The judge found the following conclusions of law:
    1. That the aforesaid resolution of the common council conferred no right upon the defendant to erect the pier in question. That if any such right was conferred thereby, it was revocable and was revoked by the common council by the act extending and enlarging the battery, so as to destroy the small pier referred to in the resolution; that the acts of the defendant in entering upon the said waters of the harbor of New York, and erecting said “crib” or section of a pier, were and are unauthorized and illegal; that said “crib” or section of a pier is an unauthorized structure in, and an encroachment upon, the harbor of New York, and a public nuisance, and that said proposed pier, if erected, would be wholly an unauthorized, illegal encroachment on the said harbor, and a permanent and continuing public nuisance.
    2. He further found that the plaintiffs were entitled to an injunction perpetually restraining the defendant, his agents and servants from proceeding in the erection of said pier, and to a judgment so enjoining said defendant, and directing Mm forthwith to abate said nuisance. and remove said “crib” or section-of a pier, and that the plaintiffs were entitled to recover their, costs in tMs action, of the defendant.
    ■ The following opinion was delivered by the justice, at the special term:
    Allen, J. “ The jurisdiction of the state over the bay3 and harbor of 2sTew York, and its title to the land under water witMn the harbor, are not controverted. The soil, of the sea, estuaries and navigable rivers within the state, is in the people of the state as the successor of the crown, and any one claiming it exclusively must show a right. (Phear on Bights of Water, 41. Garter v. Murcot, 4 Burr. 2, 162.) At common law any encroachment upon a public stream was a purpresture, that is, the making of that several and private, which ought to be common to many; and an obstruction in a public river is a nuisance, and may be dealt with as such. (Woolryoil’s Law of Waters, 192, 196. Weld v. Hornby, 7 East, 195.)
    It is said that even a grant from the crown cannot make a-nuisance of this kind legitimate; that the jus publicum is paramount to any right of property in the crown; the crown being in fact but its subjects’ trustee for the purpose of securing to them collectively all the advantages and privileges which can accrue from such property. (Phear on Water Bights, 44. Woolrych, 194. ^ Williams v. Wilcox, 3 Nev. & Per. 606.) Without a grant or authority from the sovereign power, every obstruction of a navigable river will be a nuisance, and no evidence need be given of the extent to wMch the public right is impaired or the public use of the river impeded. It is sufficient that the public domain which is devoted to a public use is invaded in a way to deprive the public of the use of any part of it. In case of a grant or license to erect a dam, pier, or dock, or wharf, or other obstruction in a navigable stream, it could not be held a nuisanee, without proof of the fact that the public damage and injury resulting from the obstruction greatly exceeded the public benefits of the erection, and perhaps not even upon proof of an entire destruction of the Jus publicum. But any obstruction placed in a public way without right—and a public navigable river stands upon the same footing as a highway—would be a nuisance, and courts will not inquire whether the advantage arising from the act complained of would compensate for all the injury and inconvenience which the public would suffer from it. In King v. Ward, (4 A. & K. 384,) Lord Denman says: “In the infinite variety of active operations going forward in the industrious community, no greater evil can be conceived than the encouragement of capitalists and adventurers to interfere with known public rights, from, motives of personal interest,, in the speculation that the changes made may be rendered lawful by ultimately being thought to supply the public with something better than what they actually enjoy.” In that case, the defendant was indicted for a nuisance in a navigable river and king’s common highway, by erecting a building of stones across the stream; and the jury found the fact that the defendant had erected the alleged nuisance, but that the inconvenience was counterbalanced by the public benefit arising from the alteration thus made; and the court held that this finding amounted to a verdict of guilty. To the same effect, see Hart v. Mayor of Albany, (9 Wend. 571;) People v. Cunningham, (1 Denio, 524.)
    ■ Among other remedies for an obstruction of public navigation, courts of equity will grant an injunction to prevent a threatened or attempted obstruction. (Att’y Gen. v. Johnson, 2 Wils. Ch. B. 87. Lane v. Newdigate, 10 Ves. 192.) Denio, Oh. J. in Davis v. Mayor &c. of Hew York, (14 H. Y. Bep. 526,) lays down the rule thus: “It is well settled that where such an offense (a nuisance) occasions, or is likely to occasion, a special injury to an individual, which cannot well be compénsated in damages, equity will entertain jurisdiction of the case at his suit; and also that the attorney general, in all cases where a preventive remedy is called for by the circumstances, or the state, in its own name, may apply for an injunction against the perpetrator of the wrong;” and see the cases cited at the page referred to, and also People v. Mayor &c. of New Yorlc, (32 Barb. 102;) and Milhau v. Sharp, (17 id. 445, per Harris, J.)
    
    If the defendant is proceeding without right to erect the pier complained of, this is a proper case for the preventive remedy by injunction, and the suit is well brought in the name of the people.
    The defendant asserts a right by grant to erect the pier which is complained of as an obstruction to the navigation, and as a nuisance. Had the grant been established to the (extent and for the purposes claimed, a question might well be made whether such a grant would not of necessity yield to I the prior and paramount jus publicum, and be so construed 1 as mot to permit any act inconsistent with the necessary use I of the waters by the public, as such necessity should' be de- ) dared by the legislature, and whether the act establishing ¡j the bulkhead and pier lines of the port of New York would i not, as an exercise of power over the navigable waters of the j state, vested in, and exercised by, the soverign power of the i state for the public good, overreach and annul, pro tanto, any j prior grants of parts of such navigable waters for individual | purposes, and this without compensation, as for private prop-j erty taken for public purposes. Certainly, any grant or 'j license to the city for public purposes would not deprive the ¡1 state of the power to recall the grant or revoke the license, in ji order to secure to the public the use of the stream for the (i more legitimate purposes of navigation. But the view I | take of the title and claim of the defendant renders it unnecessary to consider the question. Chapter 785 of the laws of 1857, confirming the action of the common council of the city of New York, in the widening of Battery place, and authorizing the construction of a ferry slip at the foot of Battery place, cannot aid the defendant. The act does not confirm any license before then given to the defendant for the widening and extension of a pier parallel to pier No. 1, but simply authorizes the common council thereafter to permit a ferry slip to be constructed in the manner then provided by law. The common council have not, so far as appears, acted under this statute, and the defendant has acquired no rights under it. Another provision of the act would be fatal to the defendant in this action, and condemn the pier which he proposes to erect. It was enacted that the ferry slip authorized by that act should not be extended beyond, or interfere with, the exterior line of the harbor of New York, as established by law. Chapter 763 of the laws of the same session had established that line, and it is not denied that the proposed line of the defendant’s pier extended beyond it.
    But stress is laid upon other acts of the common council. By resolution of the common council, approved by the mayor, May 10, 1853, permission was given to the defendant to widen a small pier, south side of pier No. 1, North river, on the southerly side, so as to make the same forty feet wide, and to extend it parallel with pier No. 1, to the exterior line, at a .distance of one hundred and fifty feet from said pier, under the direction of the street commissioner. The small pier referred to was subsequently, and before the defendant acted under this license, by the act of the common council in enlarging the battery, merged in and absorbed by the battery, the made ground of the enlargement reaching and extending outside and beyond the pier. The destruction of the pier in the way mentioned was an effectual revocation of the license to enlarge it, and the resolution gave the defendant no authority to construct a new pier from any point in the outer line of the battery as enlarged.
    But a still greater difficulty, if possible, exists in the want of power in the common council to grant any such license. Certain uplands within the city of New York have from time to time been granted to the city of New York by the people of the state, some for general purposes, and absolutely, and others for specified purposes, and qualifiedly. I find, and ¡j have been referred to no statute, charter or grant, by which Í the title to lands under water, or jurisdiction over the navi¡j gation and the rights of the public in the waters of Hew ) York harbor, has been transferred to, or vested in, the com-1 mon council of the city. The act of 1821 (chap. 172) au- * thorizes the enlargement of the battery by the city, and the title, when enlarged, was vested in the city for a public walk, for public buildings, and for purposes of defense, “but without any power to dispose of the same for any other use or purpose whatsoever, and without any power of selling it, or any part thereof.” And the same limitation of power is found in the act of 1790, (chap. 25,) conveying to the city Fort George and the lands adjoining, for the same public purposes. The ordinance of 1853 does not purport to confer a title upon the defendant; and had the city, instead of giving the license under which the defendant seeks to justify the erection of the pier, in terms granted, for a valuable consideration, the locus in quo, the lands under the water, with express permission to erect this structure, the grant would have been void as ultra vires. But no such thing was attempted. The city gave a license, without consideration, which it had no authority to give, and which was revocable at pleasure, and which was soon thereafter revoked by making it impossible for the defendant to avail himself of it.
    But if it should be conceded that the license, in the absence of any act of the state sovereignty, would have protected the defendant from indictment for the nuisance, still the state having the right, and being under obligation to protect and preserve the navigable waters for the uses of the public, having by law made erections under such license unlawful by prohibiting them, the license itself is annulled by an authority paramount to that of the city. The law of 1857, fixing the exterior lines of the piers and docks in the city of Hew York, and prohibiting erections outside of such line, makes all such erections unlawful—the legislature having the exclusive jurisdiction in the premises. The legislative prohibition makes all structures in contravention of it nuisances, and the courts cannot sit in review- of the legislative will and discretion. No property of the city or of the defendant has been taken for any purpose, public or private. The state has prohibited trespasses upon public navigable waters of the state. The state can protect its property, and the public in the use of public highways, without providing compensation to those who are guilty of purpresture, or are seeking to appropriate to themselves what of right belongs to all.
    The defendant is without color of title or shadow of right to the locus in quo, and the erection of the pier is without authority of law, and against the statute of 1857, fixing the exterior line of the bulkheads and piers in the city of New York, and would if erected be a nuisance, indictable and removable as such, and the plaintiffs are entitled to the relief demanded, with costs.”
    Judgment was accordingly entered in favor of the plaintiffs, perpetually enjoining the defendant from proceeding in the erection of the pier, and from doing any act or thing to create any encroachment upon, or obstruction in, the waters of the harbor of New York, or tending thereto, and directing him to abate the alleged nuisance, and to remove the same. The defendant thereupon appealed to the general term.
    
      Horace F. Clark and Chas. A. Rapallo, for the appellant.
    
      D. S. Dickinson, (attorney general,) and Wm. A. Butler, for the respondents.
   By the Court, Ingraham, P.J.

This action was brought to restrain the defendant from enlarging a pier known as No. 1, North river, adjoining the battery. The right of the defendant to make such enlargement is claimed under a resolution of the common council, passed in 1853, granting permission to the defendant to widen the pier and to extend it to the permanent or exterior line. The right of the corporation to grant such a permission depends upon their title to the land upon which the pier was to be erected. The claim of title in the corporation is based upon the act of March, 1821, which authorized the corporation to extend the battery into the river not exceeding 600 feet. This act vested in the corporation the title to the soil under the water so to be filled in. If this were all, there would be no question as to the right of the defendant to enlarge the pier, except so far as it might after-wards be restrained by the act of 1857, establishing a new exterior line, and which prohibited the building of piers beyond that line. But the same act which gave the right to fill up to the extent of 600 feet, also contained the limitation on the use of the land so to be made out of the water, by limiting the same ‘'-for a public walk, and for erecting buildings and works of defense thereon, but without any power to dispose of the same for any other use or purpose whatever, and without any poioer of selling it, or any part thereof.”

This restriction upon the use of the land for any but public purposes of a public walk or for defense, prevented the corporation from selling or otherwise disposing of any part of the land so to be acquired, for any private purpose whatever. Any grant or other conveyance of the land for any such private use would be void; and a breach of that condition, by the corporation, would justify the state in any legal measures to prevent its violation. Wherever any such attempt is made to use the land for purposes forbidden by the grant,, the grantor would have a right to interfere; and an application to the court to prevent such misuse of the land would clearly be within the province of a court of equity.

This view of the question at issue is independent of the act of 1857 establishing an exterior line, and prohibiting the extension of any piers beyond that line. If it be held that the state could interfere to prevent the breach of the condition in the grant independent of that law, the passage of that act does not deprive the plaintiffs of such right. It is true that a way is provided by which, after the pier has been erected, it may be removed ; but the remedy sought in this action is to prevent the injury to the navigation by prohibiting the erection of the pier. The power to compel a removal of an obstruction after it has been created, does not prevent an application to the court to prohibit the erection of such obstruction before it is completed.

It is urged for the defendant that this was only filling a portion of the land under water, which was authorized by the act of 1821. The act of 1860 prohibited the filling beyond the exterior line, and was of itself enough to prevent this obstruction of the river. But independent of that statute, it is idle to say that this was the filling up contemplated by the statute, when all the authority of the defendant was under the resolution of the common council which granted permission to the defendant to widen a pier, and the injunction granted was against erecting the pier which the court found to be unauthorized and a nuisance.

It is also contended that the judge erred at the trial in excluding the evidence offered by him to show that the proposed pier would not be an actual nuisance; but no such question was involved in the issue. It was immaterial whether it would have been an actual nuisance or not. The real question was whether the erection of the pier was. authorized or not. If there was no legal authority for the erection of the pier, it was a nuisance, and no evidence was admissible to show that though illegal it would do no harm. In the language of the learned justice before whom the cause was tiled, any encroachment upon a public stream was a purpresture, that is, the making of that private which ought to be common to many; and an obstruction in a public river is a nuisance, and may be dealt with as such.” Such an erection is a nuisance per se, and needs no evidence to prove that, as a matter of fact, after the erection of it is shown to he in violation of law.

[New York General Term,

September 15, 1862.

I see no ground for interfering with the decision below.

The judgment must be affirmed, with costs.

Ingraham, Barnard and Clerke, Justices.]  