Appleby v. City of New York

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: POUND
• Citation: Appleby v. City of New York, 235 N.Y. 351 (N.Y. 1923)
• Decision Date: 17 April 1923
• Parties: EDGAR S. APPLEBY et al., Individually and as Executors of CHARLES E. APPLEBY, Deceased, Appellants and Respondents, v. THE CITY OF NEW YORK et al., Respondents and Appellants.

235 N.Y. 351

139 N.E. 474

APPLEBY et al.

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

April 17, 1923.

Action by Edgar S. Appleby and others, individually and as executors of Charles E. Appleby, deceased, against the City of New York and others. From a judgment of the Appellate Division (199 App. Div. 539,192 N. Y. Supp. 211) modifying and affirming a judgment of the Special Term granting part of the injunctive relief sought, the parties bring cross-appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Spotswood D. Bowers and Banton Moore, both of New York City, for plaintiffs.

John A. Garver and Carl A. Mead, both of New York City, for intervener Consolidated Gas Co. of New York.

George P. Nicholson, Corporation Counsel, of New York City (Charles J. Nehrbas, of New York City, of counsel), for respondent City of New York.

Frederic T. Stetson, of New York City, for respondent Weehawken Stock Yard Co.

POUND, J.

This is an action to restrain the city of New York and other defendants from interfering in any way with the use and enjoyment of plaintiffs' lands under the water of the Hudson river between Thirty-Ninth and Fortieth streets and between Fortieth and Forty-Second streets, outshore of Twelfth avenue, in the borough of Manhattan. Title to the premises was vested in the city of New York by grants under the colonial charter of Gov. Dongan in 1686. By chapter 115, Laws of 1807, the commissioners of the land office were directed to issue letters patent to the city granting to it all the right and title of the state to the lands under water at the locality, extending from low-water mark 400 feet into the river. By chapter 182, Laws of 1837, Thirteenth avenue as laid out on the George B. Smith map, so called, was declared to be the permanent exterior street or avenue in the city along the easterly shore of the Hudson river between the southerly line of Hammond street and the northerly line of 135th street. The city of New York was vested with all the right and title of the people of the state to the lands under water extending from the westerly line of the lands granted by the act of 1826 to the westerly line of Thirteenth avenue, so laid out. The street lines were laid out over the lands under water thus conveyed. Chapter 225, Laws of 1845, authorized the adoption of the ordinance known as the sinking fund ordinance, which empowered the city to make the grants hereinafter mentioned.

On or about December 24, 1852, the city issued to one Laton a grant of a portion of the lands in suit, describing the same as a ‘water lot or vacant ground and soil under water to be made land and gained out of the Hudson.’ Another like grant was issued to the predecessor of plaintiffs on or about August 1, 1853, of the remaining portion of the lands. Plaintiffs claim title under these grants. The westerly line is the westerly line of Thirteenth avenue. The easterly line is the line of original high-water mark, which runs between Eleventh and Twelfth avenues. The grants were made for a substantial consideration. The streets were reserved to the city out of the granted premises, and the grantees agreeds to build streets and wharves when directed by the city. No such direction has been given.

By chapter 121, Laws of 1855, a commission was appointed to prepare plans for the improvement of New York harbor. By chapter 763, Laws of 1857, bulkhead and pier lines were established for the port of New York. A bulkhead line or line beyond which solid filling should not extend was established about 100 feet west of the westerly line of Twelfth avenue. This line was some distance east of Thirteenth avenue as laid out on the map. Under chapter 574, Laws of 1871, a further plan for the improvement of the water front moved the bulkhead line 50 feet farther out into the river, and laid out piers 80 feet in width at the foot of Thirty-Ninth, Fortieth, and Forty-First streets. In 1890 the latter line was established as a bulkhead line by the Secretary of War under authority vested in him by Congress. Piers have been laid out under an authorized plan and built by the city within the street lines of Thirty-Ninth, Fortieth, and Forty-First streets, which extend into the river beyond the bulkhead line. Permits and leases to occupy and use the piers have been granted by the city to the other defendants herein, who float vessels in the slips over the plaintiffs' lands. The city of New York claims the right to dredge such lands for the purposes of harbor improvement. They rest such right on the contention that the lands under water are navigable, and cannot lawfully be obstructed by plaintiffs. The plaintiffs contend that the land under water between the bulkhead line and their westerly line was granted in fee simple absolute, and for beneficial enjoyment; that no public right of navigation remained over the lands thus conveyed.

The question is: To what extent has the state by its grants extinguished the jus publicum over such lands?

At Special Term the city of New York was enjoined from dredging the lands of plaintiffs. The Appellate Division modified this judgment by permitting the city to dredge the lands west of the bulkhead line established by the Secretary of War. The city appeals, because it claims the right to dredge any portion of plaintiffs' lands between the piers. The plaintiffs appeal on the ground that they are entitled to the relief demanded in the complaint.

[1] The state holds the title in fee to lands under water as sovereign for the public, subject to the right of the people to use the river as a water highway. The grant of the lands to the city in 1807 was for the purpose of enabling the city to regulate and construct slips, wharves, and piers. The city sold the lands for the purpose of enabling the grantees to fill and use and land for the extension of streets thereon, and the erection of wharves, piers, etc. The grant was therefore not absolute and unqualified, but was subject to the rights of the public. American Ice Co. v. City of New York, 217 N. Y. 402, 405, 406,112 N. E. 170. The city could not exclude the public from the use of navigable waters and it could not grant the right to exclude the public from such use so long as the waters remained navigable. It scarcely needs assertion that it could not destroy the navigability of the Hudson by making exclusive private grants. It could convey submerged lands along the shore to promote commerce, not to destroy it.

[2] When the Secretary of War established the bulkhead line, the title of the state, the city and its grantees beyond such line was subordinated to such use of the submerged lands as should be required for the public right of navigation. No private property right requiring compensation was taken or destroyed by the establishment of such line. The owner's title was subject to the use which the United States might make of it. Lewis Blue Point Oyster Cultivation Co. v. Briggs, 229 U. S. 82, 33 Sup. Ct. 679, 57 L. Ed. 1083, Ann. Cas. 1915A, 232. Plaintiffs...