
    Alfred H. Lorton and Others, Appellants, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    
      New York city — agreement by the city to maintain a public slip in front of premises—right to change the location of the slip.
    
    A grantee from the city of New York of land under water, having the right under his deed to collect wharfage for the use of a wharf to be constructed by him in front of the west end of the premises, executed an agreement, reciting that he had consented to the erection by the city of a public wharf opposite the west end of the lot conveyed and that the collection of wharfage would be incompatible with the purpose of the city, in which he agreed with the city that, so long as it should think it advisable to reserve and keep open a public slip or basin in front of such lot, the city and its successors should have the use and. . take to itself the wharfage, etc., arising from the use of said pier.
    
      Thereafter the city built a bulkhead and piers so that there was in front of the premises a basin or slip at which vessels might lie, and subsequently built a new bulkhead and piers further out into the stream, the effect of which was to take away the piers formerly built, and to remove the slip 180 feet further to the west, though it was still in front of the lot conveyed.
    
      Held, that no cause of action accrued to the heirs of the grantee against the city . because of such removal, since the benefit contemplated by the grantee was the value which his property would have on account of the public slip and wharf being in front of it, and there was nothing in the change made which deprived him of those advantages.
    Appeal by the plaintiffs, Alfred H. Lorton and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of May, 1897, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.
    
      Frank A. Irish, for the appellants.
    
      Theodore Connoly, for the respondent.
   Rumsey, J.:

On the 20th of February, 1804, the defendant conveyed to one Lewis Lorton a certain lot under water on the south side of Spring street, extending from high-water mark to the east side of what is now West street in the city of New York. By the terms of this conveyance Lorton agreed to fill in in front of the lot so conveyed, for seventy feet westerly to the west side of what was intended to be West street, and to do other filling upon the lot which it is not necessary now to consider. In consideration of this work and of a certain rent to be paid, the defendant authorized Lorton to take and enjoy the wharfage and cranage and all advantages and emoluments growing or accruing by or from the use of the wharf on the west side of West street, to be constructed by Lorton in pursuance of the agreements in the deed. Before anything had been done by him under the deed, and on the 1st day of March, 1804, Lorton executed to the defendant a deed reciting the deed of February 20, 1804, made by the defendant to him, and reciting further that, since the making of that deed, the defendant, with the consent of Lorton, had made a bulkhead or wharf across the westerly end of the water lot which was conveyed to Lorton by the deed of February twentieth, whereby the right of Lorton to take the wharfage and cranage in that deed assigned wonld become incompatible with the plan and design of the defendant and disadvantageous to it. After those recitals Lorton agreed with the defendant' that, until West street was finally made and thence afterwards so long as the city should think it advisable to reserve and keep open a public slip or basin in front of that lot, the city and its successors might have, use and take to itself all wharfage, cranage, advantages and emoluments that might arise or accrue from the said public wharf or pier across the westerly end of said premises on the east side of West street, and also from West street opposite the said premises, so long as the slip or basin should be reserved. After the making of this last deed, the city constructed a bulkhead on the westerly line of West street and two piers extending into the river, so that there was in front of the premises conveyed to Lorton and other .premises a public basin at which vessels , might lie. This basin and the piers were completed in 1828 or 1830. After the making of the deed by Lorton, neither he nor his successors made any claim .to the wharfage from this pier which constituted the west- side of West street. This was the condition of affairs' until 1874, when, in pursuance of chapter 574 of the Laws of 1871, a plan for the improvement of the water front was made and approved, which provided for the building of a new marginal wharf in front of these premises, the inner line of which should be the same as the then west line of West street, and the outer line of á wall parallel to that, and 180 feet further west. The plan also included piers projecting from the outer wall for' a considerable ■ distance into the river. The effect of carrying' out this plan would be to extend West street to a width of 250 feet; to take away the two small piers which were finished in 1S28, and to remove the slip at which vessels might lie 180 feet further to the west than it existed at the time of the passage of the act of 1871. This improvement was carried out and thereupon the plaintiffs, who have succeeded to the rights of Lorton, brought this action, having for its object either to compel the city to remove the new bulkhead on the line of the water front as established pursuant to the act of 1871, and replace the piers and wharf as- completed in 1828, or to pay to them the value of ' théir rights in the old wharf which. they claim were destroyed by the erection of the new improvement. The theory upon which the action is sought to be maintained is,- that by the establishment of a new water front and the erection of a bulkhead across the basin as it was finally finished in 1828, they have practically closed the public slip and basin which had been put there, and that basin having been closed, the right of the city to take the wharfage had expired and had vested again in the plaintiffs as the successors to Lorton’s title. Upon the trial the com* held that the plaintiffs had established no right of action, and dismissed the complaint, and from the judgment entered upon its decision this appeal has been taken.

The plaintiffs base their .right to recover upon the well-settled i;ule that the city, being the owner of the land under water for 400 feet outside of high-water mark, and having granted to Lorton the right to maintain a wharf within that limit, and to receive the fees for wharfage, cannot afterwards destroy that right without making compensation for the wharfage which it had granted. (Langdon v. The Mayor, 93 N. Y. 129.) The defendant does not controvert the existence of this rule, nor does it deny that, as the result of the conveyance of the 20th of February, 1804, Lorton acquired the right to maintain a wharf in front of his lands, and to receive the fees which were to be paid by vessels using that wharf, and that this right was a valuable one, which if it existed in the form in which it was granted, could not be taken away without compensation. But the defendant insists that, as the effect of the agreement between it and Lorton on the 1st of March, 1804, this right of wharfage was released by Lorton and vested in the city so long as there should be kept open in front ■ of these premises a public slip. It insists further that the public slip was not closed by the widening of West street and the extension of the piers further into the river, but the only effect of that improvement was to change the location of the slip, so that there is still left in front of Lorton’s premises a public ■ slip or basin at which vessels may lie and which will give to the property of the plaintiffs the same advantages which it had while the slip continued in its old situation.

It is not disputed that the new basin which is now erected is a public slip; but it is claimed by the plaintiffs that the slip referred to in the agreement of March 1, 1804, was the one then in contemplation, and that the city had no power to change the location of the slip, and if it did so it forfeited the right to wharfage which Lorton had granted only for so long a time as that slip should be maintained. There is nothing in the deed, made by Lorton which precisely fixes the location of the bulkhead then contemplated, although it is quite probable that the location of that bulkhead was fixed and was known 'to the parties. It is clear, however, that wherever the bulkhead was to be, the erection of it took away from Lorton the right to receive and take the-wharfage and cranage theretofore conveyed to him, because that right was incompatible with the construction of the wharf upon the new line by the city. All that was left to Lorton was the advantagé which he had because of his ownership of the land situated immediately east of West street and facing upon that, street. This land was valuable because of its proximity to West street and because vessels could discharge in front of it on the south side of the street. The .important thing evidently was that the wharf at which the vessels lay should be a public wharf and should be in front of .the land conveyed to Lorton and-which was to be filled in by him to the easterly side of West street. So long as that condition of affairs existed Lorton received the advantage which he contemplated at the time he made his deed to the city. There is nothing in the change Avhich has been made which takes away from Lorton the advantages given to him by the erection of the original bulkhead. He still has in front of his land a public slip ; nothing can be built between his land and the wharf at which the vessels now lie, and the new piers which have been erected afford much greater space for vessels to lie and give them many more conveniences than were afforded or given by the narroAV piers which stood there before. There can be no presumption that, any injury resulted to him from the change in the location of the slip so long as it still remains open and public in front of his-premises, and so long as there is direct access from his premises to the' slip as there was before. He still has, everything which' he contracted for and everything which the city agreed to give him. The case is not within the case of Langdon v. The Mayor (93 N. Y. 129) above cited, nor within the other case's of that kind. In those cases the right of the plaintiffs to wharfage was an existing right of considerable value, and the establishment of the new exterior line by the. board of dock commissioners and the erection of a new bulkhead and piers upon which they had no rights, took aAvay and was-intended to take away, their rights of wharfage and to vest those rights in the city for its benefit, and it was because the right of wharfage still existed and was taken away by this improvement that the court held the plaintiff was entitled to damages. But here there is no right of wharfage. That has been released and Lorton' received in lieu of it an agreement on the part of the city to keep open in front of his premises a public basin at which vessels might lie. In the absence of proof that the slip was to remain in the particular location, there is no reason to believe that it was within the contemplation of the parties that such changes should not be made in the slip as were necessary to permit ships to lie there, and the right to make such changes must necessarily have been reserved to the defendant, subject, however, to its duty to preserve at all times a public basin at which vessels might lie in front of the premises which had been conveyed to Lorton.

.For these reasons, we think that the judgment of the court below is correct and must be affirmed, with costs.

Vah Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  