Bedlow v. New York Floating Dry-Dock Co.

• Decision Date: 22 January 1889
• Citation: 19 N.E. 800,112 N.Y. 263
• Parties: BEDLOW et al. v. NEW YORK FLOATING DRY-DOCK CO.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 263

19 N.E. 800

BEDLOW et al.

v.NEW YORK FLOATING DRY-DOCK CO.¹

Court of Appeals of New York.

January 22, 1889.

Appeal from supreme court, general term, First department.

Ejectment by Henry Bedlow and others against the New York Floating Dry-Dock Company. Plaintiffs appeal from a judgment affirming the judgment of the circuit court dismissing the complaint.

Turner, McClure & Rolston, for appellants.

Benedict, Taft & Benedict, for respondent.

RUGER, C. J.

In 1877, upon the termination of a lease, given originally in 1834 by the plaintiffs' ancestors to the defendant's assignors, of lands lying on the East river in the city of New York, upon which was a wharf and bulk-head, the assignees of the original lease surrendered to the plaintiffs the demised premises, with the exception of an easement of access over the water of the harbor pertaining to the wharf. The property thus surrendered was then found by the plaintiffs to be substantially excluded from communication with the harbor by a pier attached to the wharf, 35 feet in breadth, and upwards of 300 feet in length, extending into the river, and, together with the space occupied by vessels and water-crafts lying at the pier for commercial and traffic purposes, effectually obstructing access to and agress from the waterside, and substantially destroying its value as a wharf. This action was brought after the expiration of the lease, against its assignees, to recover possession of said pier, and the water-ways appurtenant to the wharf, and to obtain an accounting of rents, income, and profits arising from the use of said pier subsequent to the expiration of the lease. The defendant resists the action upon the alleged ground that it is the lawful owner of the pier. The case presents the question whether the lessees of wharf-rights upon navigable waters in New York harbor can, as against their lessors, during the existence of a lease, acquire an absolute right to occupy by a permanent structure the waters in front of said wharf to the destruction of their value and usefulness, without the consent and in definance of the will of their lessors, and, if they can, whether they have done so in this case.

The questions involved, although treated generally by the trial court as questions of fact, depend mainly, if not altogether, upon the effect of statutes and ordinances relating to the subject, and the construction of certain conveyances and leases, and the rights, duties, and disabilities of the respective parties thereunder. We have been unable to discover any question of fact, depending upon conflicting evidence, in the case, and, indeed, the testimony is quite undisputed, and leaves the questions therein to be determined mainly by the court as those of law and not of fact. Exceptions to alleged findings of fact, when they are unsupported by evidence, and to the refusals to find, when they are established by undisputed proof, present questions of law reviewable in this court. There are several of such exceptions which will appear from the views we shall have occasion to express in the case, and they need not be more particularly referred to here.

The undisputed evidence, both documentary and oral, shows that Henry Rutgers and his ancestors had for upwards of three-quarters of a century, previous to 1806, owned and occupied a parcel of land in said city lying upon tide-water, in the East river, between Clinton an Montgomery streets, bounded on the south by high-water mark in the East river. Rutgers had, before 1806, succeeded to the ownership of this land, and in that year obtained from the mayor, aldermen, and commonalty of New York, under chapter 80 of the laws of 1798, authorizing the granting of land on and in the East river for the purpose of building a street and bulk-head which should constitute an extension line on the harbor, a conveyance in the following language: ‘A certain lot, piece, or parcel of ground between high and low water mark, situate, lying, and being between Clinton street and Montgomery street, in the Seventh ward of the city of New York, opposite to that part of the ground belonging to the said Henry Rutgers, distinguished by lot number six hundred and fifty-three, containing in depth on the west side nonety-four feet, and on the east side sixty-eight feet, and in front, on the East river, or harbor of the said city, ninety-two feet and six inches; bounded southerly in front by the East river or harbor of the said city; northerly in the rear by the said lot of ground No. 653, belonging to the said Henry Rutgers,-together with all and singular the easements, profits, commodities, advantages, emoluments, hereditaments,and appurtenances to the said lots, pieces, or parcels of ground and premises above mentioned, belonging or in anywise appertaining,-unto the said Henry Rutgers, his heirs and assigns, to the only proper use, benefit, and behoof of them, the said Henry Rutgers, his heirs and assigns, forever.’

In consideration of this conveyance Rutgers covenanted to build, erect, and make, at his own cost and expense, ‘a good, sufficient, and firm wharf, pier, or street of seventy feet, English measure, in breadth on the south side of the first-described lot of ground, number six hundred and fifty-three, hereby granted, contiguous to the East river or harbor of the said city, and distinguished in the map or plan hereto annexed by Front street;’ and that he would forever thereafter keep and maintain said wharves, piers, and streets in good repair and condition, and for the free and common passage of the inhabitants of said city. The city covenanted that it had full power and lawful authority to convey said premises, and warranted the peaceable and quiet possession in the said Rutgers, his heirs and assigns, forever thereafter. It further appeared that at some time thereafter, but at what precise time is not clearly shown, the said street, wharf, and bulk-head were constructed, and the said Rutgers was in possession thereof, collecting the wharfage accruing thereat. It further appeared that the wharf and bulk-head connected with said street, as built, extended some 16 feet into the harbor beyond the southerly line of a 70-foot street. The actual location of the line seems to have been acquiesced in by all parties, and has for a period of over 50 years constituted the southerly extension line of the city at the place indicated, under the name of Front street; it having been changed from South street at an early period.

Henry Rutgers having died, his executors, in 1834, under power contained in his will, executed and delivered to Jonathan D. Stevenson and Nathaniel Pearce a lease of the said premises, ‘together with all and singular the easements, profits, profits, commodities, emoluments, rights, and appurtenances whatsoeverto the premises above described, and every part thereof belonging or in anywise appertaining, and particularly the wharf and water privileges to the extent of the rights of said parties of the first part’ for the term of 21 years, with a covenant for the renewal thereof for the further term of 21 years upon terms which were to be fixed by a certain rate of interest to be computed upon a valuation by appraisers of the demised premises, exclusive of the erections thereon, and which renewal was duly executed by the assignees of said lessors in 1857. The said lessees immediately thereafter entered into possession of said demised premises, and either themselves or by their assignees have ever since continued to occupy and enjoy them under said lease until the termination thereof.

On November 30, 1838, at the request of the said lessees, the mayor and common council authorized by resolution a pier to be built, under the direction of the street commissioner, in the slip between Clinton and Montgomery streets, at the expense of the owners on the said slip, to be 30 feet wide, and to extend from South street into the East river 243 feet, distant 140 feet from the pier at Clinton street, and required the said street commissioner to give due publication of said resolution in the daily newspapers. This resolution located the proposed pier wholly upon and near the center of the bulk-head constituting the southerly boundary of lot No. 653, as extended by the grant hereinbefore referred to. Notice of the resolution was published in the city daily newspapers for a period of six weeks successively.

Within two weeks after the commencement of said publication said lessees addressed and delivered a communication to the street commissioner to the following effect, viz.:

‘The undersigned lessees, having the same rights and privileges as the owners of the soil to the bulk-head between Clinton and Montgomery streets, adjoining the contemplated pier ordered to be built between the said streets, do hereby signify their willingness to build said pier at their own expense, according to the ordinance of the common council.

‘ New York, Dec. 12th, 1838.

J. D. STEVENSON.

N. PEARCE.'

No other application was presented for the building of said pier, and on the 23d day of January, 1839, the street commissioner gave to said Stevenson and Pearce an instrument reading as follow: ‘Permission is hereby given to Jonathan athan D. Stevenson and Nathaniel Pearce to build a pier in the slip between Clinton and Montgomery streets; said pier to be thirty feet wide, and to extend from South street 243 feet into East river, distant 140 feet from the pier at Clinton street,-the pier to be built at their expense and for their benefit.’

The said Pearce soon thereafter, having acquired by assignment the rights of his co-lessee, Stevenson, constructed said pier of the width of 35 feet, at an expense of about $12,000. In November, 1840, Pearce, to satisfy the doubts of certain persons as to the power of the street commissioner under the statute to give the permission referred to, requested the mayor and common council to confirm the same; and...