
    William Hill, App’lt, v. The Mayor, etc., of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Hew York City—Wharves and piers—Dumping ground.
    While the original creation in 1881 of a dumping ground on pier 13, East river, may not have been authorized and may have been illegal under the act of 1875, its use after the passage of the consolidation act was legalized, and it was thereafter proper to designate such pier for such purposes.
    3. Same—Laws 1883, oh. 435; Laws 1889, ch. 509.
    The words “heretofore been used” in Laws 1883, ch. 435, and Laws 1889, ch. 509, refer to the period immediately preceding the passage of those acts, and their provisions have no application to a pier which was used as a dumping ground at those times, and not by sailing vessels engaged in free or foreign commerce.
    3. Same—Designation op pier.
    In the absence of evidence that the west side of said pier was exclusively used or required for the use of the vessels for which it was set aside under § 786 of the consolidation act, such designation cannot be held to prevent the free use of such pier.
    Appeal from a judgment entered at special term.
    
      Thomas O. Shearman, for app’lt; Edward H. Hawke, Jr.., and Chas. H. O'Neil, for resp’t.
   O’Brieh, J.

The action is brought to compel the removal of a dumping board, erected on the east side of Pier 12, on the Bast river, and to restrain the city from permitting the board to be used for dumping purposes, on the ground that the existence of such dumping board is a public nuisance, which causes special injury to the plaintiff.

The grounds upon which the learned trial judge dismissed the complaint upon the merits, are fully given in the findings and opinion. As we agree in the conclusion reached, it is only necessary to briefly supplement what has been so well and fully stated by the trial judge.

The main proposition of the appellant is, that such use of a dumping board being a public nuisance, from which special injury results to the plaintiff, that it is only where express legislative authority is given for its maintenance that it can be justified. We do not dissent from this view of the law, but applying the same to the case as presented, reference being had to the several acts which bear upon the subject, we think that therein is to be found express authority for the use and maintenance on the half of the pier in question of such dumping board.

The act of 1875 (chapter 249, § 3) in express terms prevented the use as a dumping ground of any wharf, pier or slip in the' navigable waters of the East river as theretofore used for the loading and discharging of sailing vessels regularly employed in foreign commerce. It having been made to appear that pier 12 had been so used by sailing vessels, this act prohibited its use as a dumping ground.

The Law of 1881, chapter 367, by its fourth section, expressly authorized the use of slips, piers, and berths in slips, for the use. of the street cleaning department, “excepting slips, docks and piers on the East river set apart for the use of canal boats.”

By the twelfth section of this act of 1881 “ all other acts and parts of acts inconsistent herewith ” were repealed.

It is insisted by the respondents that the repealing clause in the act of 1881 resulted in the repeal of so much of the act of 1875 as exempted this pier from use as a dumping ground. Were this a material question in the case, we should be inclined to hold that it had no such force and effect, for the reason that there is no such inconsistency between the two acts as would require, for the carrying out of the act of 1881, that the act of 1875 should be considered as repealed thereby. As intimated, however, this is neither material or essential to the disposition of this case, for though it might be urged that at the time when the pier was appropriated to the purposes of a dumping ground no express authority existed, and therefore that the original designation of the pier, and the use thereof as a dumping ground, was unauthorized, yet it will be found upon an examination of the subsequent legislation that such use was legalized. This dumping ground was estab' lished in 1881. Subsequent thereto all the laws, local and special, relating to the city of New York, were consolidated into one act, known as chap. 410 of the Laws of 1882.

Sections 706 and 728 of said act are substantial re-enactments of the Law of 1881, which permitted the use of wharfs, piers and slips as a dumping ground, excepting such as were exempt by other special provisions of law. The act of 1875 was also included in the consolidation act, and re enacted as § 773, but with a very, important and significant modification. It was therein provided, § 773, as follows;

“ It shall not be lawful to interfere with the free public use as now enjoyed, or, except as in this act otherwise specially provided, to permit the use as a dumping ground of any wharf, pier, slip, or bulkhead adjacent thereto, * * *which has heretofore been used for the loading and discharging of sailing vessels, etc.”

It will thus be seen, that the legislature having in mind the two provisions, §§ 706 and 728, which permitted the use of wharfs, piers or slips as a dumping ground, excepting slips, docks and piers on the East river set apart for the use of canal boats, that the literal re-enactment of the act of 1875 would have created another exception in favor of piers, wharfs or slips which had heretofore been used for the loading and discharging of sailing vessels.

By the language added to the Law of 1875, as re-enacted in § 773 of the consolidation act, viz.: “ or except as in this act otherwise specially provided,” we have a clear, legislative declaration that the prohibition which exists against the use as a dumping ground, of piers, wharfs or slips used for the loading and discharging of sailing vessels, should not take away the right to permit the use of such piers for that purpose, for the reason that such permission and use was otherwise specially provided by the preceding §§ 706 and 728.

In our judgment therefore, the effect of the re-enactment of all these laws in the consolidation act was to permit the use of the west side of pier twelve as a dumping ground.

While therefore the original creation of a dumping ground on the pier may not have been authorized, its use after the passage of the consolidation act was thus legalized, and it was thereafter proper to designate such pier for such purposes.

By chapter 435 of the Laws of 1883, chapter 249 of the Laws of 1875 was amended as follows:

It shall not be lawful to interfere with the free public use as now enjoyed, or to permit the use as a dumping ground of any wharf, pier, slip or bulkhead adjacent thereto, in the navigable waters of the East river, in the city of New York, which has heretofore been used for the loading and discharging of sailing vessels regularly employed in foreign commerce.”

By chapter 509 of the Laws of 1889, § 773 of the consolidation act which has already been referred to was amended as follows:

It shall not be lawful to permit the use as a dumping ground, of any wharf, pier or slip, or bulkhead adjacent thereto, in the navigable waters of the East river, in the city of New York, which has heretofore been used for the loading and discharging of sailing vessels regularly employed in free commerce, etc.”

While no doubt may exist as to what would have been the effect of the laws of 1883 and 1889 if such laws were in exist-5 ence when the dumping ground was created in 1881, the application and effect of such laws must be determined with reference to the use which had been made of the west side of pier 12 since 1881. It will be noticed that in these laws (1883 and 1889) the prohibition is restricted to such a wharf, pier or slip, “ which has heretofore been used for the loading and discharging of sailing vessels, etc.”

The question, therefore, remains as to the construction to be given to these words, “ heretofore used.”

As to the true meaning to be applied to these words, we are not permitted to speculate in view of the decision of the court of appeals, which has expressly passed upon the meaning of this language.

In the case of the People v. The Baltimore & Ohio Railroad Company, in the 117th New York, Judge Gray, at p. 158 (27 St Rep., 153), uses the following language:

“ The words, 1 heretofore been used,’ in the amendatory section of the act of 1883, should be taken in their usual and ordi- • nary sense and signification. Whenever the legislature has expressed its will in words having a common acceptation, and a plain, as contra-distinguished from a technical meaning, we must read them as they would be supposed to be used and understood generally. So read, 1 heretofore ’ would, to the ordinary mind, convey the idea of before this, time, that is to say, 1 hitherto,’ ‘down to this time,’ and not at all the idea of comprehending any remote time, in this or the last century. The construction which must convey the true intent of this legislative act is, that piers which have been in common and continuous use by sailing vessels, engaged in foreign commerce, of a drought of more than eighteen feet, shall continue open to that use. The manifest ob- . ject of making such a reservation was to prevent piers then" in such use, and hence, presumably much needed by the public, from being exclusively used by private persons or corporations.’’

The pier having, therefore, at the time been used as a dumping ground, and not by sailing vessels engaged in free or foreign commerce, the prohibition in the acts of 1883 and 1889 do not apply.

Our attention has also been called to §§ 786, 787 and 788 of the consolidation act, which designate the manner in which the west side of pier 12 should be used. It is provided in § 786 that, together with other piers, the west 'side of pier 12 shall continue to be set apart * * * for the use and accommodation of the regular packet lines of sailing vessels, propellers and barges, which on April 13, 1857, occupied berths on such other piers and on the west side of pier 12, and running to and from Boston to the other places in such section mentioned. No evidence, however, was offered upon the trial to show that any such regular packet lines which occupied berths on such pier in 1857 so occupied them down to 1881, or that they after 1857, and down to the time that the pier was designated as a dumping ground, continued to run to Boston and the other places mentioned in that act.

By § 788 it is provided that nothing in § 786 shall be construed to prevent the use of the waters and wharves, when such waters and wharves are not required for the use and accommodation of the vessels, boats and barges described in such section.

There being in the. case no evidence that the west side of the pier 12 was exclusively used or required for the use of the vessels for which the pier was to be set aside, we are forced by the direction in the act not to construe such designation as preventing the free use of such pier.

Upon an examination, therefore, of all the grounds relied upon, we do not think that any error was committed which requires that this judgment should be reversed, and it is accordingly affirmed, with costs.

Van Brunt, P. J., and Patterson, J., concur.  