
    The Village of Mayville, App’lt, v. Mariette Wilcox et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1891.)
    
    1. Municipal corporation—Cannot maintain an action por a riparian RIGHT.
    In 1804 the' Holland Land Company laid out a street in a village six rods wide, the end of the street abutting upon Chautauqua Lake, a navigable b. dy of water. In 1887 the court of common picas of Chautauqua county under § 3 of chap.150, Laws of 1837, granted to Dexter and Tinkom permission to erect a wharf and thereon a store house at the end of said street 40 feet wide. The effect of this was to narrow the street where it met the water .by that distance. The charter of the village gave it the power of commissioners of highways. In an action against.the grantees of Dexter and Tinkom to restrain their erection of a building upon the wharf to the end that the street might be restored to its original width, EM, that the.village had no riparian rights and could not maintain such an action and that this could be done only by the People, the grantees of the Holland Laud Co.
    2. Same—Presumption that a court acted within its jurisdiction.
    The said statute of 1827 provided that such permission could only be given to adjacent owners and the order did not show that Dexter and Tinkom were such. Held, that it would be presumed that a court of record acted within its jurisdiction.
    8. Adverse possession— Prescriptive right under decree op court.
    The occupation of the defendants and their grantors since 1827 was shown. Held, that this established a prescriptive right under a claim of title based upon the decree of a competent court having jurisdiction.
    Appeal from a judgment enteredpn Chautauqua county November 27, 1886, on the report of a referee dismissing the plaintiff’s, complaint upon the merits.
    
      Shermun A Rogers, for app'lt; Lorenzo Morris, for resp’ts.
   Macomber, J.

This action was brought to restrain the defendants from erecting buildings in front of the termination of Brie street in the village of Mayville, abutting against the waters of Chautauqua Lake.

The plaintiff, which was incorporated April 19, 1867, has, by virtue of its charter, the powers of commissioners of highways, under the general' laws of the state, within the limits of Mayville.

The Holland Land Company was the original proprietor of the land situated within the corporate limits of this village, and of the waters of Chautauqua Lake. The lake is a navigable body of water and sundry lines of steamers are now operated thereon for the purpose of conveying passengers and merchandise to and from various parts of its shores. The Holland Land Company laid out Brie street in the year 1804, the map of which (included in the map of the village) was filed in the county clerk’s office of Chautauqua county on the 23d day of February, 1829. The street was then six rods wide. In. the year. 1827 the court of common pleas, on proper application, made an order, dated the 27th day of June of that year, granting permission to John Dexter and Hezekiah Tinkom to erect a wharf on the land covered by the water at the termination of Erie street, and to extend it on a line parallel with the northeastern line of Erie street to the width of forty feet, for a distance of three hundred feet into the lake, with the privilege to erect on such wharf or pier such store houses as they might think necessary for public convenience. This order has remained unrevoked. At the time mentioned the waters of the shore of Chautauqua Lake, at this point, were shallow, not exceeding the depth of two feet at a distance of fifty feet from the shore. In pursuance of the power given to Dexter and Tinkom by the court of common pleas, these persons did, in the year 1828 or 1829, erect a wharf and storehouses at the termination of Brie street, in accordance with the power thus bestowed, namely, taking up forty of the ninety-nine feet of the street at its' intersection with the water, and carrying the wharf or pier into the lake a distance of three hundred feet. These premises, for a width of forty feet, have been in the possession and occupancy of the defendants. and their grantors since the year 1828 or 1829. The wharf has not been used for about twenty years, and the buildings erected thereon by the defendants were destroyed by fire about the year 1883.

That the court of common pleas had the power to make the grant above mentioned admits of no doubt, under chap. 150 of the Laws of 1829. Section 2 of that act is as follows:

“ And be it further enacted, that it shall and may be lawful for ■any person owning lands adjoining the Cayuga, Seneca or Chautauqua lakes, to erect any wharf or wharves, storehouse or storehouses, upon any land covered by the water of such lakes, adjacent to, and bounding upon the land of such owners, and to use, occupy and enjoy the same, as if conveyed by the commissioners of the land office, pursuant to an act passed February 6, 1824;

;"provided, that nothing in this act shall be so construed as to authorize any person to erect a wharf at the termination of any highway, so as to obstruct the passage of ferry boats or any other water craft; and, provided, further, that before any peráon or persons shall be authorized to erect any wharf or storehouse in Chautauqua. lake, such person or persons shall first apply to, and obtain the consent and order of the court of common pleas of said county, which consent and order shall not be granted until the applicant or applicants shall first give at least three weeks notice of such intended application, by publishing a notice in one of the newspapers printed in said county; and when such order and consent shall be obtained, it shall forthwith be filed in the clerk’s office of the county of Chautauqua.”

The learned counsel for the appellant contends, notwithstanding the judgment of the court of common pleas, and the continued occupation thereunder by the defendants and their grantors, that the village of Mayville, nevertheless, has the right to maintain Erie street as a public highway to its full width of ninety-nine feet unobstructed to the water’s edge. In this contention we cannot concur with counsel. Erie street was by the Holland Land Company opened and dedicated as a street in the year 1804. It was then, it, is true, six rods wide. The public had received, through the dedication made by the Holland Land Company, no rights beyond a right of way to the waters of the lake. We ¡know of no powers given to the village of. Mayville to construct wharves and maintain them upon these waters. The right of action underlying this suit seems to be based upon allegations that the defendants threatened to erect and maintain in front of such street, within the limits of its lines, extended into the waters of the lake, structures and buildings the erection of which, it is claimed, would prevent the plaintiff and the public from enjoying the frontage of Erie street upon the lake, and from using the same as^ an approach to and from the street, clocks or wharves that may be' hereafter erected thereon, whereby the plaintiff would be deprived of its vested riparian rights. But it is quite evident that the plaintiff has no riparian rights over the waters of Chautauqua lake.

It is a municipal corporation, without ownership of any highways or streets except in trust for public use. Its charter is silent upon

the subject of any riparian right; and. our attention has not been called to any statute which would give it any power to erect, for its own purposes or for the purposes of the commerce of the lake,, piers or wharves out into the lake for its own use, to the exclusion of the public. It cannot be regarded as having any control over the navigable waters, unless such power is expressly conferred by statute. If the defendants have made, or if they now threaten to make any structures into the lake, so as to impede navigation, it is not, in our judgment, the province of the village of Mayville to call such action in question; but the same is cogziable only by the proper action in behalf of the people of the state, as the state has succeded to the original rights of the Holland Land Company. Wetmore v. Brooklyn Gas Light Co., 42 N. Y., 391.

1Furthermore, it appears that the occupation by the defendants and their grantors, which has been continuous since the year 1828, lias been not of the whole of the foot of Erie street upon the lake, but of only forty feet thereof out of the total width of ninety-nine feet. There remains, therefore, to the village ample room of access to the lake, and it has not been deprived in any respect by the interference of the defendants with easy egress and ingress from the lake to the highway.

It is further claimed by counsel for the appellant, that the order of the court of common pleas above mentioned was ineffective, because it did not affirmatively appear, outside of the recitals of the order, that Dexter and Tinkom owned lands adjacent to the waters of the lake where the wharf was permitted to be extended. But in our judgment, a presumption arose that the court acted within its jurisdiction, for it was a court of record.

Moreover, the statute does not require that the order as entered shall contain the proofs upon' which it was founded. The direction is that the order only shall be entered upon the record of the clerk’s office.

Under the facts proved, the occupation by the defendants and their grantors since the year 1828 clearly establishes a prescriptive right, under a claim of title, based upon a decree of a competent court having jurisdiction in the premises especially bestowed, by the statute above set forth. Code Civ. Pro., § 369.

The title of the defendants and their grantors has been repeatedly recognized by the plaintiff. In the year 1869 condemnation proceedings were instituted by the plaintiff to extend Erie street over the lands in question; but after a jury had been summoned for the assessment of damages and an appeal had been taken, the proceedings were subsequently abandoned and discontinued. Since the incorporation of the plaintiff, it has caused the premises and property of the defendants and their grantors to be assessed, and has exacted and received taxes thereon from the defendants and their grantors.

Were it important or necessary to establish the fact that the plaintiff has ample access to the lake, it would be sufficient to point to the evidence, and to the accompanying map, which show that it has control of Water street, which runs nearly at light angles to Erie street, and along the shore of the lake, and that such street affords all adequate facilities needed by the plaintiff.

The judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., and. Lewis, J., concur.  