
    (69 Hun, 324.)
    MAYOR, ETC., OF CITY OF NEW YORK v. NEW YORK CENT. & H. . R. R. CO. et al.
    (Supreme Court, General Term, First Department.
    May 12, 1893.)
    1. Deed—Exception—Construction.
    Under a grant by the city of New York of “all that certain water lot, vacant land, and soil under water,” described by metes and bounds, excepting so much as formed part of a street and certain avenues, “for the uses and purposes of public streets, avenues, and highways,” the fee to the parts excepted remains in the city, though never used for the purposes mentioned.
    2. City Council—Invalid Grant—Estoppel.
    Tlie fact that a city council, without complying with the law, attempted to grant a water right on condition that the grantee build a pier, will not estop the city from maintaining an action of ejectment to recover the land with the pier.
    Appeal from circuit court, New York county.
    Action by the mayor, aldermen, and commonalty of the city of New York against the New York Central & Hudson River Railroad Company, the West Shore & Ontario Terminal Company, and John A. Davis, to recover possession of land. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    Argued before YAH BRUNT, P. J., and FOLLETT, J.
    
      Ashbel Green, (H. E. Anderson and Herbert E. Kinney, of counsel,) for appellants.
    W. H. Clark, (D. J. Deen and Henry B. Twombly, of counsel,) for respondents.
   VAN BEUNT, P. J.

This action was brought to recover land under water, forming part of what is known on the map or plan of the city of New York as “Thirty-Ninth Street,” together with the pier erected thereon, and the mesne profits arising therefrom. The facts in this case are undisputed, and therefore only questions of law are presented. It appears that on the 16th of November, 1.848, the city granted to James H. Cobb, as trustee for Sophia V. D. Laing, certain land under water, extending from high-water mark to Eleventh avenue, and from the middle of Thirty-Ninth street to the middle line between Thirty-Eighth and Thirty-Ninth streets. Prom this grant was excepted so much of the land embraced within the foregoing description as formed parts or portions of Thirty-Ninth street and Twelfth and Thirteenth avenues, for the uses and purposes of public streets, avenues, and highways. In and by said grant the grantee agreed that he would, within three months next after he should be thereunto required, at his cost, build, erect, make, and finish, according to any resolution and ordinance of the city of New York already passed, or that might be thereafter passed, three good and sufficient bulkheads, wharves, avenues, or streets, which shall form so much and such parts of Thirty-Ninth street and Twelfth and Thirteenth avenues as fall within the limits of the premises first described, and which were excepted, as aforesaid, from and out thereof, for public streets. In 1850, Cobb applied to the common council for permission to build a pier at Thirty-Ninth street, and the council passed the- following resolution:

“Resolved, that a water grant at the foot of 39th street, N. R., be given to James N. Cobb: provided, that he shall build at his own expense a good and substantial pier at the foot of the said street, under the direction of the street commissioner, the same to be completed in one year.”

It would seem that a pier was built upon this property, and, under various mesne conveyances, whatever rights the défendants had in said land were conveyed to them. In 1890 a resolution was passed by the common council revoking the authority for the maintenance of the pier in question; and this action in ejectment was subsequently brought, resulting in the judgment for the plaintiffs from which this appeal is taken.

The claim of the defendants seems to be based upon the assumption that by the grant made in 1848, as above stated, some right was conveyed to the grantee over the land upon which the pier in question, which forms the subject-matter of this action, was built. This contention clearly cannot be sustained. The land upon which this pier was built belonged to the city of New York, and it was in pursuance of the ownership of the land under water that the grant in question was made to the grantee above named. But by this grant there was expressly excepted the soil embraced within the limits of the streets shown upon the map annexed to the conveyance. It is true that in the conveyance it was stated that such exception was made for the uses and purposes of public streets, avenues, and highways; but it is entirely immaterial for what purpose the exception was made, if the land in question was not included in the grant, as clearly it was not. A grantor who •stated in his deed that he excepts a certain portion of the land because he wants it for a certain purpose cannot be held to have conveyed that which he has expressly excluded because he after-wards devotes it to a different purpose. The land in question was not included in the grant, and therefore no title passed. And there is no room for any claim that all that the common council reserved out of the water grant of 1848 was the right to wharfage and cranage arising from that part of the grant within the ThirtyHinth street boundaries. They actually excepted the land; did not give any title; did not intend to give any title; and the fallacy of the defendants’ position rests upon the assumption that only rights of wharfage and cranage formed the subject-matter of The grant of 1848, whereas it was a conveyance of land under Avater, the property being described as “all that certain water lot, vacant land, and soil under water to be made land and gained out of the Hudson or Horth river;” and out of this conveyance is excepted the land upon which this pier was erected.

But it is said that the common council, having in. April, 1850, passed a resolution that a water grant at the foot of ThirtyHinth street be given to the defendants’ predecessor in title, provided that he should at his own expense build a pier, entered into an agreement by which the corporation agreed that, in consideration of the construction of the pier, such predecessor should have a water grant, i. e. the right of wharfage at the foot of ThirtyHinth street, which was the only right retained by the city of New York in the grant of 1848. This proposition rests upon the assumption that the right of wharfage at the foot of Thirty-Hinth street was the only right retained by the city of New York in the grant of 1848, which we have already seen in a fallacious construction of the grant under which the defendants claim. And, furthermore, it is difficult to see how the title to real estate can be passed by resolution, the more particularly as the common council, under the ordinances which were binding upon it, had certainly no power to make any grant in the manner in which it was attempted to be done in the case at.bar. The commissioners of the sinking-fund have control over grants of land under water, and the provisions of the ordinances in respect to such control were in no wise complied with. The fact that under such resolution the grantee in the water grant constructed this pier, and was permitted to construct it, could not act as an estoppel upon the plaintiffs. If the common council could not grant, they could not authorize an act to be done which would operate as an estoppel, because an estoppel arises only where the act is done in pursuance of an authority received from a source or permitted by a party capable of granting the right.

It is further suggested that an action in ejectment will not lie to recover an incorporeal hereditament. But the subject-matter of this action was not an incorporeal hereditament. It was the land upon which this pier stood, and the erections which had been unlawfully put upon such land; and in the case of Mayor, etc., of City of New York v. Law, 125 N. Y. 380, 26 N. E. Rep. 471, this form of action is expressly approved.

It is further urged that the court erred in directing a verdict for six years’ damages, as the defendants had received no notice of the revocation in April, 1890, of any rights which had been granted by the resolution of 1850. This position would undoubtedly be correct if any authority had been conferred by the resolution of 1850, which amounted to a legal license of occupation, by the person named in such resolution, of the land in question, for the purpose of the erection of a pier. It having been already shown that the common council had no power to grant this land under water, it does not seem to be necessary' to repeat the argument for the purpose of showing that they had no power to license. Having no power to grant, they had no power to dispose of the possession of the land in question for any purpose whatever. It would seem that the case of Mayor, etc., of City of New York v. Law, above cited, has disposed of all the questions involved in this case, and that no error was committed upon the part of the" court.

The judgment appealed from should be affirmed, with costs.  