
    In the Matter of the Application of the Mayor, Aldermen and Commonalty of The City of New York, Acting by the Department of Docks of The City of New York, Relative to Acquiring Right and Title to and Possession of the Wharf Property, etc., Necessary to Be Taken for the Improvement of the Water Front of the City of New York on the North River, Between Forty-second and Forty-third Streets, and Between Twelfth and Thirteenth Avenues, Pursuant to the Plan Heretofore Adopted, etc. The American Ice Company, Appellant; The City of New York and The Forty-second Street and Grand Street Ferry Railroad Company, Respondents.
    .First Department,
    May 11, 1906.
    Municipal corporation — condemnation of dock property in city of Mew . York — when rights of all owners should be determined — former adjudication that owner has no fee is not inconsistent with claim to an easement — assessment óf damage for fee as not subject to easement will not be confirmed when question of validity of easement not determined wharfage — right of access;
    When in condemnation proceedings by .the yity of New York to acquire for , municipal purposes lands under water and wharfage rights and easements appurtenant thereto, the order appointing. commissioners requires them to assess the loss and damage to the respective owners and persons respectively entitled to wharfage rights, easements or privileges connected with the property" proposed to be taken, it is error to refuse to pass upon the validity of a claim to ownership of easements and wharfage rights asserted by a corporation, as the determination of such claim is one of the duties of the commissioners.
    The fact.that in a former action the claimant was adjudged not to own a fee in the lands in question is "no ground for refusing to determine whether it owned easements, or other incorporeal rights for the taking of which it .is entitled to. compensation. .
    When such commissioners have assessed the damage of .owners of the fee at tbs full value of the fee as if; not servient'to easements claimed by other parties, - the court will not confirm such assessment, because, if the lands are subject to easements owned by other parties, the damage awarded is more than tile municipality should pay. •
    A ¿rant of right, of wharfage- carries with it as an appurtenance the right of access to the wharf over adjacent lands of the grantor under water.
    
      Appeal by The American Ice 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 30th day of June, 1905, confirming the report of commissioners of estimate and assessment filed in said clerk’s office on the 5th day of Mav, 1905.
    
      Albert Stickney, for the appellant.
    
      James A. Deering, for the respondent railroad company.
    
      Theodore Connoly, for the respondent city.
   Houghton, J.:

In furtherance of the plan to improve the water front of the city of Hew'York, as authorized by chapter 137 of 'the Laws of 1870, as amended by chapter 574 of the Laws of 1871 and the amendatory acts thereof, the mayor, aldermen and commonalty of that city, acting by the department of docks, >on the 31st of December, 1894, instituted condemnation proceedings under chapter 410 of the Laws of 1882 and the acts amending the same, to acquire the lands under water and wharf property on the Horth river, situated between West Forty-second and West Forty-third streets, bounded northerly and southerly by the respective sides of those streets, together with all wharfage rights, incorporeal hereditaments and easements appurtenant thereto.

The petition alleged that the respondent, the Forty-second Street and Grand Street Ferry Bailroad Company, was the owner of all the property and rights involved,.and the commissioners of estimate and assessment, appointed to appraise the damage, so found. and reported and awarded the sum of $215,000 to the railroad company as damages for all the land under water between the lines of Forty-second and Forty-third streets, and the wharfáge rights connected therewith.

On the hearing before tlio^ commissioners, the appellant, the American Ice Company, appeared and claimed to be entitled to an award of damages, for certain wharfing privileges and easements along the southerly side of Forty-third street, arising out of an alleged right to maintain a .pier at the extension of Forty-third street, to which right the adjacent lands of the railroad company were claimed to be subservient. This claim was not recognized by the commissioners, and from an order of the Special Term confirming their report the ice company appeals.

Had the commissioner's passed upon the merits of the appellant’s • claim and Concluded to award it nothing, quite different questions would have been presented to us than those which we feel called upon to'determiné upon this appeal.

From the report of the commissioners it appears that they determined tó make no award to the ice .company, and, in effect, refused to pass upon its rights because they thought it for the best interests of.the city and its present policy to acquire, bulkhead rights owned by private parties on Manhattan island first and separately instead of attempting in the same proceeding to acquire the.rights of private . pier owners; and as they interpreted the petition for the appointment of commissioners, it did not refer to- the condemnation- of any pier or pier rights, and hence concluded it to be unnecessary to determine whether or not the ice company had any rights for which compensation should be made.

The petition did refer to all wharfage rights and easements to the - lands lying between the two lines of Forty-second and Forty-third streets. The order appointing the commissioners required them to make an estimate and assessment 6f the loss and damage “to the respective owners ” and “ persons respectively entitled unto or intep ested in the wharfage rights, wharf property, terms, easements or privileges ” connected witli the property proposed to be taken. ■

■ The appellant received whatever title it has from the Knickerbocker Ice Company, which, before the grant to appellant and prior to December 29,1902, brought an action to restrain the respoñdents, the Forty-second Street and Grand Street Ferry JRailroad Company and the City of Mew York-'and all' others from constructing a bulkhead at the foot of Forty third street in the Mortli river; "or across the water lot lying between Forty-second and Forty-third streets' in accordance with the plan adopted by the department of docks, claiming to -be the owner in fee of á dock at the foot of Forty-third street. It was defeated in that action on the ground that it had no fee estate, and that judgment was affirmed by this court (Knickerbocker Ice Co. v. Forty-second Street R. R. Co.,. 85 App. Div. 530) and by the Court of Appeals (176, N. Y. 408). In both courts the facts respecting the title of appellant’s grantor to a pier at the foot of Forty-third street or to its right to maintain one at that point are fully stated and it is unnecessary to repeat them here.

While it was held that the Knickerbocker Ice Company had no title to the land upon which the pier, was erected or might be erected, the Court of Appeals, in an opinion in which the entire "court concurred,' says : “ These things are n'ot only inconsistent with the idea that the grant of 1862 (under which appellant claims) conveyed an absolute fee, hut -they speak with most persuasive force of the real purpose and effect of the grant, which was to convey to the grantee the right to maintain a pier and to collect wharfage, etc., at the foot" of Forty-third street in the Hudson river, wherever that point should be located by lawful authority. It was the incorporeal hereditament attached to the fee and not the fee itself that was conveyed. Under this construction of the grant the rights of all concerned are recognized and preserved. The city holds the title, which it never had the right to alienate. The plaintiff, as the grantee’s successor in title, has the right to follow the lawful extension of Forty-third street for the purpose, of maintaining a pier and collecting its revenues.”

The respondents insist that this expression of opinion was unnecessary to the decision of the case, and, therefore, is not controlling upon us. In a sense this is true, but unless the deed of 1852 was absolutely void, it operated to convey something, and it was á very natural and pertinent observation in determining that it did not convey a fee to point out what in fact it did convey. We do not feel at liberty, if so inclined, to ignore this language of the Court of Appeals, or its consequent holding.

A grant of the right of wharfage is a grant of property. (Langdon v Mayor, etc., of City of New York, 93 N. Y. 129, 151.)

Whether the deed of 1852, which is the source of appellant’s title, was invalid because the two branches of the common council did not properly pass the resolution authorizing a sale by the city of the pier right; or, if the resolution was properly passed, whether there was such an intent to pass title to the land upon which the pier was to be erected that no valid easement or wharfage right can be deemed to have been conveyed; or whether the appellant’s grantor or the appellant itself has forfeited all or any of the rights which it may have liad; or whether 'the- appellant has any rights at all which-the city should be compelled to compensate it for, we do not now determine, because those questions were not passed upon by the commissioners. We think they misconstrued, the scope of their inquiry,. and that they, should have .determined these questions and have concluded upon the merits whether or not the appellant had any existing right to maintain a pier at the foot of Forty-.tliird street,; and, if so, what damage resulted from the taking away of that right to the south side of that street or pier at the end thereof,'and that they should not . have ignored those tights in making'their award to the railroad company.

It is urged.that the award to the railroad company should be affirmed because the city does not complain, and that, whatever' rights the appellant may have can be preserved by. a rehearing as ■ to it. The difficulty with that position is that if the appellant,has, in fact, rights for which it should be compensated, the title of the railroad company to the lands under water between Fortyrsecbnd and Forty-third streets is subservient to sucli rights. The railroad company has been awarded damages fpr the full rights and title to lands under water up to the' south bounds of Forty-third street. The ice company and the railroad company received title from a common owner. ' Whatever-pier-tight existed at Forty-third street, as well as the water apd land_ rights between Forty-third -and Forty-second streets, were, owned by John La Farge. The pier right, was conveyed by liis widow .and devisees to -the appellant’s grantor in' I860.' The land and Water rights between Forty-second and Forty-third streets wére conveyed to the respondent railroad company’s grantors in 18'63 by the same persons. The grant of the right of wharfage at a wharf adjoining land under water belonging to the grantor carnés with it, as a necessary incident and appurtenance, and in legal effect as part of the grant, a right of way or access to the wharf: for vessels over the grantor’s adjacent land under water. (Langdon v. Mayor, etc., of City of New York, supra.) The conveyance to appellant’s grantors of the wharf or - , pier, having been made by the persons then owning the lands adjacent under water, if valid and noti existing, gave appellant' a tight of access to the wharf over the lands under water subsequently conveyed to the grantors of the respondent railroad company. This prior deed was recorded before the subsequent deed was given. The railroad company has been awarded full damages irrespective of that right. Even if the ice company could compel the city to reimburse it for its rights, the city ought not to be compelled to pay again for rights which it has already paid for in full. If the award to the railroad company shall be affirmed, and the ice company subsequently establish liability on the part of the city, such would be the result.

It is further urged that the judgment against the Knickerbocker Ice Company, appellant’s grantor, is a bar to the claim of any right on appellant's part. We do not concur in this view. In that • action the plaintiff, claiming to be the owner of the fee of the pier, sought to restrain interference with its property. It wq,s determined that the plaintiff did not have a fee, and the relief asked was denied. Here, the only question involved is whether or not the appellant has any easements or incorporeal rights for which it should be compensated.

Without, therefore, determining Whether the appellant has any rights for the taking of which it should be compensated and because the commissioners proceeded upon a wrong theory in ignoring such rights and in not passing upon the question whether or not any -rights existed, and in making a full award to the railroad company irrespective of such rights, we think the order must be reversed and a rehearing had, with costs to the appellant against the city of Mew York to abide the event.

O’Brien, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Order reversed and rehearing ordered', with costs to appellant against the city of Mew York to abide event.  