
    People of the State of New York, Resp’ts, v. Baltimore and Ohio Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    1. Piers and wharves oe New York city are a part op public highway —Who can give permission to obstruct.
    The piers and wharves of the city of New York are but lateral extensions of the streets or highways, and are wholly under the jurisdiction of the people as represented by the legislature. No right to interefere therewith to the detriment of navigation or to the obstruction of the free use of the public can be bestowed by any local authority of the city, unless the power to permit such obstruction has been previously delegated by the legislature.
    2: Same—Laws 1882, Chap. 410, § 773.
    Under Laws of 3882, chapter 410, § 773, pier No. 27, East river, in the city of New York, which had been used for loading and discharging sailing vessels having a draft of more than eighteen feet of water, cannot be occupied by any permanent structure which amounts to an obstruction of the free use of the pier as a public highway for the purposes of commerce; a mere permit given by the department of docks is not a sufficient answer to a suit brought by the attorney general to have said structure removed.
    Appeal from a judgment of the special term, enjoining and restraining the defendant from the use of, and requiring it to remove, the sheds and structures erected by it upon pier No. 27, East river in the city of New York below the Brooklyn bridge, which said pier in forty feet wide by 448 feet in length.
    
      Charles F. Tabor, attorney-general, and Wrn. JR. Wilder, for resp’ts; W. W. JMJacFarland, for app’lt.
   Macomber, J.

The material findings of the learned trial justice are, in substance, that the shed, which was erected by the defendant interferes with the use of the pier as a public highway, and that consequently the plaintiffs are erititled to restrain such obstruction by injunction.

Under the ancient charter of the city of New York, and under colonial and state legislation down to the year 1871, incumbrances and obstructions upon the wharves and piers, which might interfere with free navigation, seem not to have been permitted by law. People v. Mallory (46 How. Pr. Rep., 283; Commissioners of Pilots v Clark, 33 N. Y., 251.

All changes made in the law by the act of 1871 were such only as raised the question, whether or not the city of New York had the right to permit sheds or structures to be erected upon the docks for the accommodation of individual or particular shippers, and to the exclusion of the public at large. The decision already cited, however, seems to have been a finality of that question, and thereby the right of the people, as represented by the legislation, was reasserted. People v. Macy 62 How. Pr. Rep., 65.

The decision of People v. Mallory (supra) was followed by chapter 249 of the Laws of 1875. The first section of that act legalizes the erection of sheds and of structures upon piers and bulkheads in the city of New York, upon the condition of obtaining the consent of the department of docks therefor, and declares the erections already made to be lawful. The second section thereof prohibits the landing of any vessel at such pier or bulkhead without the consent of the owner or lessee. The third section prohibits the interference with the free public use of the wharves, piers and bulkheads of the East river, although it preserves the existence of the sheds and structures then already existing upon such docks and piers. This last mentioned portion of the act of 1875 is embodied in section 773 of chapter 410 of the Laws of 1882, commonly known as the consolidation act.

The exception made by section 773 of the consolidation act is confined only to any wharf, pier, slip or bulkhead “which has heretofore been used for the loading and discharging of sailing vessels regularly employed in foreign commerce, and having a drought of more than eighteen feet of water.” The evidence is conclusive to the effect that for many years prior to the enactment of the act of 1875, this pier, No. 27, had been used for the loading and discharging of sailing vessels of that description.

As is determined by the course of legislation and by the uniform decision of the courts, the piers and wharves of the city of New York are but lateral extensions of the streets or highways, and being upon navigable waters, are wholly under the jurisdiction of the people, as represented by the legislature, and no right to interfere therewith to 0the detriment of navigation or to the obstruction of the free use of the public, can be bestowed by any local authority of the city, unless the power to permit such obstruction has been previously delegated by the legislature. Hence, it is that any permanent structure which amounts to an obstruction to the public use of the pier as a public highway for the purposes of commerce as the erection made by the defendant is shown to be, is such an obstruction as the people, represented by the attorney-general, may cause to be removed by a suit for that purpose.

It is not a sufficient answered for the defendant to show a mere permit given to it by the department of the docks, so long as the act of 1875, now embodied in section 773 oí the consolidation act, exists.

It follows, therefore, that the judgment should be affirmed, with costs.

Van Brunt,- P. J.,. and Bartlett, J., concur.  