
    In the Matter of the Petition and Application of George B. McClellan and Others, Constituting the Board of Rapid Transit Railroad Commissioners of the City of New York, for and on Behalf of Said City, for the Appointment of Commissioners of Appraisal, etc., in Relation to Lands at Joralemon and Furman Streets, in the Borough of Brooklyn, City of New York. The Public Service Commission for the First District of the State of New York, as Successor to the Board of Rapid Transit Railroad Commissioners for the City of New York, and The City of New York, Appellants; New York Dock Company and United States Mortgage and Trust Company, Respondents.
    Second Department,
    October 27, 1911.
    Water and watercourses — piers in city of New York — riparian rights appurtenant to lands used for piers — titfe of city to lands under water between boundaries of projected streets — city charter, section 83, construed — subsequent grant to private owner —eminent domain — condemnation of lands to construct subway under East river — compensation to pier owners —inconsistent findings — “commerce” • defined — damages for impairment of riparian rights.
    The owner .of piers in the borough of Brooklyn extending into the Bast river has, at common law, as appurtenant to such ownership, the right to reasonable access over waters of the river between the piers, although the title to the lands beneath the waters is in the State. The owner likewise is under the duty, imposed by statute, to keep the slip between the piers dredged out so as to permit , the ordinary use thereof for 'commerce.
    Such appurtenant rights do not create any title in fee in the lands alongside of or between the piers. Such title can only be acquired by grant. :
    Sections 83 to 88 of the charter of the city of New York giving to the city control of its entire water front, subject to the rights of private owners of property, and granting to the city in fee all public streams, rivers and waters of all descriptions, and all the title and interest of the State therein, and such lands under water as are embraced in the projected boundary lines of any street intersecting the shoreline, which may be in use or may be hereafter opened for public use, extending from the high-water mark out into said rivers, etc., even if not considered as a. complete grant made a. permanent appropriation to the uses of the city of aE lands under water described in the charter, and the Commissioners of the Land Office had no further power to make grants in fee thereof or otherwise to private persons inconsistent with the provision's of said sections.
    Hence, a dock company owning piers extending into the Bast river cannot claim title in fee to the lands beneath the waters embraced by said piers under a subsequent grant from the State made in 1902; and commissioners appointed in proceedings to condemn lands for constructing a subway under the waters of the Bast river should not award damages to the pier owners on the theory that they owned the fee of the lands beneath the sEp under such grant.
    As the charter in express terms grants the city of New York lands under water and below the high-water mark embraced by the projected boundary lines of “any street intersecting the shore line and which street is in public use or which may be hereafter opened for public use,” the grant embraces the lands between the projected lines of such street although portions thereof have not been aetuaEy opened for public use.
    In any event, where the commissioners in the condemnation proceedings found as a fact that a street had been opened to the bulkhead line established by law and that the fee of the dock owners in that street was subject to street uses to the bulkhead line, so that section 83 of the city charter applied and the city became vested with the fee of the lands under water between the boundaries of the projected street, it was inconsistent for them to allow the dock owners compensation on the theory that they had a fee.
    A subway constructed under the Bast river for the carriage of passengers between boroughs of the city of New York is constructed for “navigation, intercourse and commerce ” within the meaning of section 83 of the city charter. The word “commerce” embraces carriage of passengers for hire.
    Moreover, even if the construction of such subway could not be held to be within the purposes of the grant made by section 83 of the charter, the objection is avaüable only to the State and is not open to dock owners. Tlie Commissioners of the Land Office had no power to grant a fee to such owners where the fee had already been granted to the city.
    The city, however, owning the fee to the lands under water between the lines of the projected streets cannot use those lands in such manner as to impair or damage the rights of the pier owners unless compensation for such damage be made.
    . Appeal by the Public Servicé Commission for the First District of the State of New York, as successor to the Board of Rapid Transit Railroad Commissioners for the City of New York, and The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office ■ of the clerk of the county of Kings on the 10th day of September, 1909, confirming the report of commissioners of appraisal .herein.
    
      Francis J. Byrne [Theodore Connoly and Archibald R. Watson with him on the brief], for the appellant, The City of New York.
    
      Charles E. Hotchkiss, for the respondents.
   Carr, J.:

This is an appeal from an order made at Special Term in Kings county which confirmed a report of commissioners in condemnation proceedings. ' The proceedings were begun by the rapid transit commissioners, appointed under chapter 4 of the Laws of 1891, as amended, to acquire such rights in certain lands in the borough of Brooklyn, and land under water abutting the borough of Brooklyn, as were necessary for the construction of a branch of the municipal subway system, which, crossing under the bed of the East river, entered the borough of Brooklyn at the foot of Joralemon street in said borough, thereby connecting Brooklyn with the subway system in Manhattan. An amended map was filed to define and explain the precise locations in which these necessary rights were sought to be obtained. On this map certain parcels of water-front property are shown and numbered from 1 to 10 inclusive, of all of which the New York Dock Company, a corporation and a party to these proceedings, claimed an ownership in fee. By written stipulation between the petitioners and the New York Dock ' Company, the petitioners entered into immediate possession of certain of the parcels shown on said map for the purpose of constructing the subway in question. As a consequence of this entry into immediate possession and the. carrying on of the work of construction, very considerable damage was done to the property and business of the New York Dock Company which was temporary- in its nature. The commissioners of ■ estimate took proofs of the. elements and extent of this temporary damage,-as well as those offered to prove damages to the dock company resulting from the permanent occupation by the subway as constructed. In making their award the commissioners did not state separately the items of temporary and permanent damage, but awarded a gross sum of $162,500 to the New York Dock Company in compensation for both temporary and permanent damages. The commissioners stated in their report that they found that The New York Dock Company was the owner in fee of all of the lots, pieces and parcels of land and premises shown on the amended map adopted by the Board of Rapid Transit Railroad Commissioners for The City of New York on June 15,1905, and thereon designated by the parcel Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, subject, however, to the public easement for street purposes vested in The City of New York, in that portion of said premises known as Joralemon street, being that portion of said street between the westerly side of Furman street and the bulkhead line or line of solid filling established by chapter 484 of the Laws of 1836, as said Joralemon street was laid out and opened by Commissioners of Estimate duly appointed, and whose report was confirmed by the Supreme Court, Kings County, on August 4, 1842.”

It is urged on this appeal by the legal successors to the petitioners that, in making an award on the theory that the New York Dock Company owned a fee in all the parcels so enumerated in their report, the commissioners proceeded upon an erroneous theory, and that, therefore, their determination as to damages must be reversed.

The record before this court is quite voluminous, but the real point of controversy, considering the only question raised on this appeal, may be stated and considered within reasonably brief limits. The substantial question of title is confined to the lands under water at the • foot - of Joralemon street which underlie the slip or basin between two piers owned by the dock company and known as piers 17 and 18. These lands are claimed by the dock company in fee, while the petitioners contend that that portion of them which has been taken for, and is now occupied by, the constructed subway was in fact owned in fee by the city of New York. The- claim of the dock company is based upon a grant made by the State in 1902 and upon a claim of title arising out of circumstances existing before the grant of 1902. These circumstances will be examined first.

There is no question that the dock company was the owner of piers 17 and 18 and that these piers were built arid maintained in pursuance of law. Prior to 1902 there was no grant from the State to the lands under water in the slip between these piers, from the bulkhead line out into the bed of the East river. Whatever rights the dock company had in these lands were such as, under common-law principles, were incident and appurtenant to "the ownership of the piers above described. Under these principles, the owner of the piers had a right of reasonablé access over the waters covering the surrounding lands, though title to such lands was in the State, and the owner had likewise .a right and a positive duty, imposed by statute, to keep'.the slip between its piers so dredged out, when necessary, as to permit the ordinary use thereof by commerce. (Langdon v. Mayor, etc., 93 N. Y. 129; White v. Nassau Trust Co., 168 id. 149.) The possession and enjoyment, of these rights did not create necessarily any title in fee in the lands alongside or between the piers. Title in fee to such lands could be acquired only by grant, and not as a mere incident or appurtenance to the ownership of the piers. This brings us to a consideration of such rights as the dock company acquired by grant from the State in 1902. A title in fee to the land under water here in controversy was granted apparently by the State to the dock company, but the express terms of said grant provided that it was made “subject to such right, title arid interest as The City of New York has under the provisions of its- charter to lands under water in front of projected streets, if any such there be, and such right, title and interest, if any, are excepted from this grant and reserved to said city.” The provisions of the charter of the city of New York covering this subject-matter are set forth in sections 83 to 88 thereof, inclusive. (Laws of 1901, chap. 466, amdg. Laws of 1897, chap. 378.) Section 83 provides as follows: “To the end that The City of New York, as herein constituted, may be eriabled to make needful provisions for the navigation, intercourse and commerce of the city and adequately to develop and secure the same now and in the future, the said city shall have the control as herein and in this act provided,- of the water front of the entire city,-subject, however, to the rights of private owners of property, and also power to establish, construct, acquire, own, maintain and enjoy all ferries, public wharves, docks, piers, bulkheads, basins, slips, streets, approaches and spaces, and all other public structures, adjuncts and facilities necessary or proper for the navigation, intercourse and commerce, foreign and domestic, of the city. To these ends, in addition to all other grants, there is hereby granted in fee to the said city of New York, as herein constituted, in all the public streams, rivers, sounds, bays and waters of all descriptions at any and all places within said city or adjoining the limits of said city as herein constituted, all and singular the property, estate, right, title and interest of the People of the State of New York, in, to, of, and concerning such lands and soil covered by water, as are embraced within the projected boundary lines of any street intersecting the shore line, and which street is in public use or which may be hereafter opened for public use, extending from high-water mark out into said streams, rivers, sounds, bays and waters so far (any limits in existing grants to the contrary) as the said city shall now or at any time hereafter in the opinion of its board of aldermen or department of docks and ferries require the same for ferries, public wharves, docks, piers, bulkheads, basins, slips, or other public structures, adjuncts and facilities for navigation and commerce, including the right for such purposes to reclaim such lands from said waters, and including also all riparian rights, and all rents, issues and profits of the premises herein granted. The Commissioners of the Land Office shall from time to time, convey or patent the lands herein granted to the city for said purposes as and whenever required by the board of docks.” It will be noted that this section, after declaring a general purpose for needful provisions for the navigation, intercourse and commerce of the city,” makes a specific grant to the city of New York of all lands under .water then owned by the State in language as follows: “ To these ends, in addition to all other 'grants, there is hereby granted in fee to the said city of New York, as herein constituted, in all the public streams, rivers, sounds, bays and waters of all descriptions at any and all places within said city or adjoining the limits of said city as herein constituted, all and singular the property, estate, right, title and interest of the People of the State of New York, in, to, of, and concerning such lands and soil covered by water, as are embraced within' the projected boundary lines of any street intersecting the shore line, and which street is in public use, or which may be hereafter opened for public use, extending from high-water mark out into said streams, rivers, sounds, bays and waters so far (any limits in existing grants to the contrary) as the said city shall now or at any time hereafter in the opinion of its board of aldermen or department of docks and ferries require the same for- ferries, public wharves, docks, piers, bulkheads, basins, slips, or other public structures, adjuncts and facilities for navigation and commerce.” This section further provides as follows: “The Commissioners of the Land Office shall from time to time, convey or patent the lands herein granted to the city for said purposes as and whenever required by the board of docks.” Whether this section of the charter be considered as a completed grant, it certainly amounts to a permanent appropriation to the uses of the city of New York of all the lands under water described therein, and it was. -no longer within the power of the Commissioners of the Land Office to make any grants in fee or otherwise, inconsistent with the provisions of said section. ■ -

It is argued, however, that the section of the statute above quoted did not apply to Joralemon street, as that is said not to have intersected the shore line, nor to have extended from high-water mark, and that, therefore, its lines could not be “ projected ” out into the waters of the East river, in the meaning of the statute.' This argument is of supreme importance, because the route of the subway as constructed lies largely ■ within limits, between piers IT and-18, which would form extensions of boundary lines of Joralemon' street from the shore line out into the river. The argument is based upon a further contention that Joralemon street actually ends ábove high-water mark, or the shore line, and that the dock company owns two parcels of land intercepting its further progress to high-water mark. It is then argued that the lines of the street cannot be considered as “ projected ” into the water of the river, because such lines would pass through private property in order to reach high-water mark. This interpretation of the statute seems too narrow. The statute applies by its express terms to “ any street intersecting the shore line, and which street is in public use or which may be hereafter opened for public use.” The “projected boundary lines” described by the statute would, therefore, embrace the boundary lines of a street then laid out as intersecting the “shore line,” although a portion of it had not been actually .opened for public use, for, as it declares expressly, it has relation to such a street “ which may be hereof ter opened for public use.” In any event, the commissioners found as a matter of fact that Joralemon street had been opened out to the bulkhead line established by law, and that the fee of the dock company in that street was subject to street uses out to said bulkhead line. If so, then section 83 of the charter of the city of New York applied as the city became vested with a fee to the lands under water within the projected lines of that street out into the East river between piers 17 and 18. It was inconsistent, therefore, on the part of the commissioners to find that the dock company had title -in fee to all lands beyond the bulkhead line, and to base its award of damages on such a theory.

It is suggested that' the construction of the subway was not such a purpose as would fall within the main purpose of whatever grant had been made to the city of New York by section 83 of its charter, as aforesaid, which grant is declared to he made for the general purpose of “navigation, intercourse and commerce.” The subway is devoted to the carriage of passengers between the boroughs of the city. The word “commerce ” has been held to embrace the carriage of passengers for hire. “That the transportation of passengers is a part of commerce is not now an open question.” (Passenger Cases, 7 How. [U. S.] 401; Gibbons v. Ogden, 9 Wheat. [U. S.] 1.) If, however, the construction of the subway can be held to he not within the purposes of the grant made by section 83 of the charter, that objection is to be availed of only by the State, and is not open to the dock company, for the Commissioners of the Land Office had no power to grant to it in fee what had already been granted to the city of New York in fee. The grant made in 1902 to the dock company must, therefore, be deemed to have excluded such lands under water in the slip between piers Hos. 17 and 18 as were included within the projected lines of Joralemon .street from the bulkhead line outward. The city, however, could not .use these lands for any purpose in such manner as to impair or damage the rights of the dock company as pier owners, or as grantees under the grant of 1902 so - far as it elsewhere applies, and where such impairment and damage is shown compensation must be made, but it must be based upon a proper legal theory. These views • lead to a reversal of the order confirming the report of the com! missioners. There is, however, no necessity of appointing new commissioners, in view of the great expenditure of time and money already had, and the matter should be referred back to the same commissioners for re-examination and a new report, with the suggestion that whatever . awards may be made hereafter for temporary, and permanent damages be stated separately.

Jenks, P. J., Hirschberg, Burr and Thomas, JJ., concurred.'

Order reverséd, with ten dollars costs and disbursements, and matter remitted to- the commissioners, in accordance with opinion. Order to be settled before Mr. Justice Carr. .  