
    The Thousand Island Steamboat Company, Respondent, v. Walter L. Visger and H. Wellington Visger, Appellants.
    
      Wharf on a navigable river—if constructed without authority from the State it eannotbe used by a steamboat company without the owners consent—if constructed under-letters patent reciting a grant for the purpose of promoting commerce the owner cannot give to one steamboat company an exclusive privilege to use it—remedy inequity —effect of the omission from letters patent of conditions contained in prior letters.
    
    Where the owners of property in the State of New York, abutting on the St.Lawrence river, construct docks extending into the bed of the river, the fact, that such docks were constructed' without the express authority, of the State-of New York does not entitle a steamboat company to land its steamboats at-such docks without the consent of the owners.
    Where, however, the abutting owners procured patents from the State of New York of the lands on which the docks were built, reciting that the letters were-granted “for the purpose of promoting the commerce of our said State and. for no other object or purpose whatsoever, and with the reservations arid upon the conditions hereinafter mentioned,” one of which conditions was that if the-grantees should not “within five years from the date hereof actually appropriate and apply the above described premises to the purposes of commerce by erecting a dock or docks thereon, and filling in the same,” then said presents, and everything therein contained should “ cease, determine and become void,” the abutting owners, by the acceptance of the letters patent, thereby dedicate-the docks and so much of the uplands as is necessary for that purpose to the-use of all people engaged in general public commerce on the river, subject to-proper regulations and the payment of a reasonable compensation.
    If the abutting owners assume to execute to a steamboat company a lease of the. exclusive privilege of using such docks, the court will not lend its aid to an attempt by the lessee to exclude another steamboat corporation from landing at the docks in question.
    The fact that letters patent, subsequently granted by the State of New York to. the abutting owners, contained no statement of the purposes or conditions for, and upon which, the prior letters were granted,, will not he construed as-intended to relieve the abutting owners from the obligations created by the-acceptance of the prior letters patent.
    Appeal by the defendants, Walter L. Yisger and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 22d day of April, 1903, upon the report of a referee, enjoining and restraining the defendants from landing their boats at, and from going or entering for the purpose of soliciting passengers or traffic for their said boats upon, certain wharves upon the St. Lawrence river.
    
      
      Theodore E. Hancock, for the appellants.
    
      Henry Purcell, for the respondent.
   Hiscock, J. :

We think that the judgment appealed from is erroneous in so far as it restrains ■ the defendants from landing their boats at and, fertile legitimate and ordinary purposes of their business in connection therewith, entering and going upon the Grossman and Cornwall wharves.

It will be necessary to a proper appreciation and undeistandingof the legal questions involved upon this appeal to go somewhat into-the history of the parties and into a history and description of the wharves over which the controversy has arisen leading up to this, litigation.

The dispute between the parties apparently originated in the. rivalries of the steamboat business upon the St. Lawrence river. The plaintiff for several years before the commencement of this-action had been engaged in the business of operating a line off steamboats upon that river, carrying passengers and freight and touching at various points, including among others the wharves, already mentioned. The defendants were engaged in substantially the same business, although, perhaps, upon a somewhat smaller scale. The wharves in question are all of considerable size, each, being 200 feet or more in water frontage. They run substantially parallel with the current of the river and all of them project beyond low-water mark over and upon the bed of the ■ stream. Each one. was constructed by the owner or owners of the shore or upland property in front of such property and extending out into the river. There is no public thoroughfare extending from any of the. wharves over and through the adjacent lands, but passage must be had over the private premises of the owners of the wharves.

The Fine View wharf is situated at Wellsley island, and further-est up the river. The other two wharves are located at the. village-of Alexandria Bay. There is sufficient depth of water at the latter,, so that they are accessible for use by all of the steamers which ply upon the river. The first-mentioned wharf has a lesser depth of water at its side and cannot be used by some of the largest steamers.. Each of the wharves is an evolution by extension and addition o£ .-•an original smaller structure. The Fine View .wharf at the time -of the transactions in question was owned, by one Pierce and located "in front of premises owned and used by him as a summer hotel, -and the original wharf, of which it was an enlargement, was built -about eighteen years ago. The Cornwall wharf in 1902 was owned by Andrew Cornwall and others comprising the firm of Cornwall Brothers, and was produced by the enlargement and addition of a •wharf which in one form and another had existed at the same point "for fifty years or more. The Crossman dock was owned by some people of that name and located in front of premises owned .by them, "upon which they operated a hotel, and there had been located at this ¡same place also a dock owned and operated by said Crossmans. and "their predecessors in title for a period of fifty years or inore.

In 1902, in the case of the Fine View and Cornwall wharves, and -some years prior thereto, in the case of the Grossman wharf, plaintiff obtained a lease from the respective owners of those properties purporting to grant and convey to it the exclusive control and possession thereof, and such leases were in" existence at the time of the -commencement of this action and were made the basis of plaintiff’s -claim of right to exclude defendants from the use and privileges of -said landing places. Up to the time when plaintiff brought this ¿action whereby it seeks to prevent defendants from landing at and using - said docks, with the exception of a course of exclusion pursued or attempted, to be pursued by it towards defendants upon one •or more prior occasions, they had all been substantially open to pub- ■ Jic use by all of the steamers and boats engaged in navigating the Ft. Lawrence river and which in turn paid compensation to the respective owners for such use and privileges. The plaintiff established that upon a few isolated and widely separated occasions some boat had been forbidden the use of one o'f the wharves, but this was evidently due to some special reason, aiid neither the evidence nor the findings of the learned referee warrants any other view than that stated of a general use of the wharves, by any' one who desired so to do, upon a.compensation charged by the owners, and as a necessary incident to such general and public use thereof passage to and from the "vyharf over the adjacent lands of the .owner was permitted. .'There was no means of approach to Wellsiey island except by ■water, and, so far as the evidence discloses, the same is true of Alexandria Bay, so far as any public means of conveyance is -concerned.

In attempting to prevent defendants from landing tlieir boats at -the points in question, it is apparent that plaintiff is actuated, in part, at least, by the desire to secure an advantage over a business rival. The defendants do not controvert its claims that it has •secured leases purporting to give it exclusive rights of use and possession from the people who are the owners of the wharves and of the respectively adjacent shore lands. Defendants, however, insist that the general public engaged in commerce and trade upon the St. Lawrence river have so acquired the right to use these wharves upon a proper and reasonable compensation therefor that neither the plaintiff nor the lessors, the owners thereof, can exclude it therefrom. This contention of defendants is based upon the claim that said wharves have become public ones, and that they have become and been made so through long-continued public usage, and also in the case of two of them through conditions in the grants by the State of the land in the river upon which they stand, which compel their submission to a public and general use and enjoyment.

After consideration of the propositions thus presented, we agree with the view adopted by the learned referee that there was no such evidence of long-continued or uninterrupted user by the public of the Fine View wharf as would justify us in holding that thereby the public acquired the irrevocable right to use the same. In the case of this wharf there has been no grant by the State of the lands in the bed of the river whereon it stands, and, therefore, necessarily no conditions imposed by the State and accepted by the owners governing its nature and imposing upon it the character and condition of a public wharf. The owners of the adjacent lands have seen fit, without express authority from the State, to construct their property into the bed of the river. If thereby they have in any way interfered with the rights of the public in the stream or created a purpresture or nuisance, the remedy rests with the State for the removal thereof, and their conduct, even if wrongful and that of trespassers, would not give the defendants a. right to use the property.

In the case of the other wharves we have concluded to place our decision in favor of defendants’ right to use the same, upon the conditions contained in the grants by the State- to the respective, owners .thereof. ,We, therefore, pass directly to a consideration of the patents issued through the Land Office of the property in the bed-of the stream whereon these structures stand.

Three letters patent were granted to Charles W. Crossman and others of the lands whereon the Crossman dock is said to stand, two-of these being dated December 28, 1883, and one February 25, 1897, and one grant of similar nature was made to Andrew Cornwall and others of the site of the Cornwall dock, dated December 28, 1883. Each of the grants of the year 1883, to whichever site-relating, recited that it was made “ for the purpose of promoting the commerce of our said State and for no other object or purpose-whatsoever, and with the reservations and upon the conditions hereinafter mentioned,” and of.which conditions one was that if. the grantees therein named should not “ within five years from the date hereof actually appropriate arid apply the above described premises-to the purposes of commerce by erecting a dock or docks thereon, and filling in the same,’’ then said presents and everything therein contained should “ cease, determine and become void.” The letters patent to the Crossmans dated in 1897 did not express said purpose or- contain said condition.

We have ho doubt that the grantees in these various patents of 1883 accepted the same for the purposes and upon the conditions therein contained and thereby became bound by contractual obligations to fulfill such purposes and conditions according to their true intent and meaning,, which we shall presently consider.

• It is suggested, and correctly according to the evidence, that at, the time of these various grants, docks already stood upon the sites respectively thereby conveyed, and that the owners of the adjoining uplands under the general principles of law applicable thereto-with ut any express grant or conveyance had the right, within certain conditions, of maintaining wharves extending into, the. river, and it. is intimated rather than seriously argued perhaps, that, therefore, there was no consideration for the assumption by the grantees of the conditions and obligations set forth in the patents. We do not, however, regard such view as well founded. The originals of the present wharves had been built prior to the date in question, but they have been enlarged and maintained since upon the lands conveyed. It' is not very valuable to speculate upon the exact motives which prompted the Grossmans and Oornwalls to desire these grants and conveyances of express lights from the State. But it may very easily be imagined that rather than have their respective properties subject to' the controversies and uncertainties which might arise over wharves constructed into the bed of a navigable river, under the general principles of law applicable thereto without any conveyance from the State, they desired to have their property rights definitely and strictly defined and protected by cession from the State even though as a condition thereto they assumed certain obligations and undertakings. At any rate, they did accept the conveyances and ever since have held and acted in apparent reliance upon the same without any thought of surrendering the rights which they thereby secured, and there is now no place for the argument that they are not bound by the burdens which accompanied those conveyances.

Neither do we think that there is any opportunity to hold that the letters patent of 1897, which contained no statement of purposes or conditions for and upon which it was made, is to be construed as relieving the grantees therein named from the obligations of the prior grant of 1883. The later conveyance covers only part of the property covered by thosé of 1883, and so far as we are able to discover, the evidence does not disclose how the Grossman wharf stands with reference to the parcels covered by the patents of the two different years. We presume it stands upon the land covered by both. We think it would be an unwarrantable construction and conclusion to hold that the officials of the State in derogation of public rights, and so far as appears without any adequate consideration, intended by the later conveyance to relieve the grantees of the obligations which they had then assumed by accepting the earlier grants.

Holding, therefore, that' the ownership of those two wharves in plaintiff’s predecessors in title rests upon grants with the effect of contracts which dedicate them to “ the purpose of promoting the commerce of our said State,” and contain conditions pointing in a similar direction, we come to a construction of the meaning of the language used.

Bearing in mind that the grants in question were made under public statutes in behalf of the People of the State of property and rights which belong to them in a great ■ navigable river, are we to hold that the commerce intended to be created and promoted was the general public Commerce of the State as it was carried on upon the River St. Lawrence, and by any public carrier who saw fit to participaté therein, or was the commerce referred to dependent upon and subject .to such boundaries, limitations and favoritism as the owners of the wharves in the exercise of their judgment or caprice' might see fit to impose ? For there is no finding or evidence or suggestion in this case .that defendants are not public carriers of passengers and freight engaged in the pursuit of such commerce as exists upon the St. Lawrence river, or that they have been guilty of any such misconduct, as warrants the application to them of rules of personal 'exclusion. If the privileges of the wharves in question- may properly be denied to them, then we see no reason why the spirit of denial and exclusion may not be extended to one after another of the steamboat lines plying upon the river until they have all been prohibited -except the plaintiff or some other line favored by the owners, and the use of these wharves reduced from a public one for the general convenience of the people to that of a private nature devoted simply and solely to the personal aims and convenience of the owners or their lessees.

It. seems to us .that the bare statement of this question carries with it the answer, and that the commerce contemplated by the grants was the general public commerce carried on by all of the people who saw fit. to engage therein; that the nature of the obligations which the grantees assumed was of the same general public character as the property and rights- which they secured in consideration therefor; .that these defendants and others who may be engaged in a similar occupation have the right, subject to proper regulations and the payment of a reasonable and proper compensation therefor, to use these wharves in a reasonable way for the running of their boats, the reception and discharge of their passengers and freight, and for the" proper and reasonable advertisement of .their ho.ats and solicitation- of business -therefor.

We do ..not, of course, lose sight of the fact that this decision involves the subjection of the adjacent uplands to the use and passage of the public. As. a .matter of fact they seem to be already subject to such usage for the purposes and convenience of all other carriers except the defendants. If the use thereof by the latter’s customers shall somewhat increase the burden already imposed thereon, we have no trouble in concluding that, if we are right in our view that the plaintiff’s predecessors by their acceptance of the grants in question dedicated their docks to public usage, they also conferred the incidental right so far as necessary to pass over their adjacent lands.

It would require too much space to review in detail the many authorities which have been cited by the learned counsel for the respective parties as bearing upon the interesting question under consideration. We may refer to two of them.

The case of Wetmore v. Brooklyn Gas Light Company (42 N. Y. 384), especially relied upon by the respondent, seems to be clearly distinguishable from the case at bar, and not to sustain the position taken by the plaintiff herein. In that case the dispute arose over the exclusion of plaintiff from the use of defendant’s bulkhead and premises constructed upon land under the navigable waters of the East river under a grant from the State. It was insisted that the right conveyed to the defendant to construct such a wharf was subject to the use of the public for commercial purposes with the right of accepting the payment of the customary charges from those using them, and that it was not intended to give an absolute title to the owner to the structures and lands acquired. The answer made to this claim of plaintiff most clearly and definitely sustained by the court was that there was nothing in the acts conferring the right which showed any intention to confer a franchise or title subject to such rights in the public. The court took occasion to say : “ If there had been an intention to confer the right claimed upon the public, the right of erecting the structures and filling in would have been given upon the condition that the public should not only have the right to use the structures and the land acquired by the filling, but also the shore lands of the' owners to an extent sufficient to make the right available. The absence of any provision conferring any right upon the public to use any portion of the structures or land made by filling in, or that upon the margin, is conclusive that the Legislature did not intend to confer any such right.”

If we are right in our construction of the language used in the conveyances under review here, the State did precisely what it omitted to do in the Wetmore case. It made the grants to plaintiff’s predecessors subject to the rights of the public to use the wharves and the adjacent lands so far as necessary for the purposes of commerce.

We think that- the case of Harper v. Williams (110 N. Y. 260), cited by the appellants, does clearly sustain the construction and conclusions which we have adopted. That action was brought by the plaintiff to restrain the defendants from the. use of a dock built-by him upon Long Island sound upon premises covered by a grant from the Commissioners of the Land Office of the State, which recited that it was made “ for the purpose of promoting the commerce of our said. State, and for no other object or purpose whatsoever, and with the reservations and upon the conditions hereinafter mentioned.” The grant was of “ power and authority to erect -any dock or docks that shall be necessary to promote the commerce of our said State” upon the land described in the grant, and “ authority to collect from persons using such dock or docks reasonable and accustomed dockage, to be regulated by our Legislature.” It was held .that plaintiff’s dock was subject to public usage, and that he could not exclude therefrom the public, of which the defendants were a part.

So far as the right of the public to use the docks erected is concerned, we see no difference in principle between the case cited and that now under review. In each case the grant by the State was expressed in identically similar language, to be “ for the purpose of promoting the commerce of our said State and for no other object or purpose whatsoever, and with the reservations and upon the conditions hereinafter mentioned.” The expression of this purpose in the case cited was followed by a direct grant of the power to erect docks so far as the same should be necessary to promote the commerce of our said State,” with authority to' collect a reasonable dockage, etc. In the case at bar the statement of the purpose for which the grant was made was followed by a condition that the same should be void if the grantees did. not actually appropriate the granted premises “ to the purposes of commerce by erecting a dock or docks,” etc. This condition was binding upon the grantees, and they have erected and are now maintaining the docks. In each case the language which measured and characterized the use of the docks when erected was that they should be devoted to the “ purposes of •commerce.” The Court of Appeals, by its decision last referred to, .adjudicated that the commerce to be thus subserved was a public and general commerce, which prevented the owners from excluding the defendants or any other member of the public desiring to use the property within the limits mentioned. Such adjudication seems to lead with controlling forge to our parallel conclusion in this case, that the docks leased by plaintiff were dedicated to a general public use for commercial interests, which forbade the exclusion of the defendants.

We do not think that the right expressly granted to plaintiff in the case last cited to collect dockage impairs at all the authority of that case upon the question as here involved. One of the objects expressed in the grant of such.right was to place it subject to the ■supervision and control of the Legislature. It is not questioned, .and we have no doubt in this case, that the owners of the wharves in question as an incident to their erection and maintenance for public purposes had the right to charge reasonable fees for such use.

Finally, it is suggested in the elaborate and carefully considered ■opinion of the learned referee in substance that if it be assumed that plaintiff’s lessors became, bound in the conditions of their respective grants to erect and ■ maintain wharves which should be for the benefit and use of the general public and that it was a violation of their obligations to exclude defendants, still their obligations rested upon a contract with the State and that it alone could pursue ■a remedy for such violation. We do not deem it necessary in this case to decide how far the defendants as plaintiffs might go in enforcing obligations made for their benefit as part of the public by the State with its grantees. We do not think that that question is necessarily here. The defendants are not plaintiffs seeking to pursue some remedy. The relations of the parties litigant in respect to the affirmative is the reverse of that which it seems to us is implied in this suggestion by the learned referee. The lessee of the docks as a plaintiff has come into a court of equity asking that it should assist it in violation, as we have held, of the obligations which rested upon it tó unlawfully exclude defendants from the docks in question. It is asking this court to furnish power and authority to aid in violating the obligations which it has assumed with the' State for the benefit of the public of which defendants are a part. It is well settled upon principle and by precedent that the court will not take-such a part for such purposes.

The judgment appealed from should be reversed in so far as it in. effect adjudges that the defendants, their agents and employees, be restrained from landing their boats at the Cornwall wharf or theCrossman wharf during the period covered by the leases held by the-plaintiff, and that said defendants, their agents, servants, etc., be-restrained from entering or going upon either of said wharves-during said period for the purpose of soliciting passengers or traffic-for their boats, and a new trial granted upon questions of law and of fact, and said judgment is affirmed in so far as it adjudges with respect to the Fine View wharf. This decision to be without costs-to either party as against the other of this appeal.

All concurred.

Judgment reversed in so far as it in effect adjudges that the-defendants, their agents and employees, be restrained from la'ndingtheir boats at the Cornwall wharf or the Crossman wharf during the-period covered by the leases held by the plaintiff, and that -said defendants, their agents, servants, etc., be restrained from entering- or going upon either of said wharves during said period for the purpose of soliciting passengers or traffic for their boats, and á new trial granted upon questions of -law and of fact, and said judgment: is affirmed in so far as it adjudges with respect to the Fine View wharf. This decision to be without costs to either party as against, the other upon this appeal.  