Appleby v. City of New York

• Decision Date: 01 June 1926
• Docket Number: No. 15,15
• Citation: 46 S.Ct. 569,271 U.S. 364,70 L.Ed. 992
• Parties: APPLEBY et al. v. CITY OF NEW YORK et al. Re
• Court: U.S. Supreme Court

271 U.S. 364

46 S.Ct. 569

70 L.Ed. 992

APPLEBY et al.

v CITY OF NEW YORK et al.

No. 15.

Reargued March 1, 2, 1926.

Decided June 1, 1926.

This is a writ of error to review the judgment of the Supreme Court of New York as affirmed by the Court of Appeals. Appleby v. City of New York, 199 App. Div. 539, 192 N. Y. S. 211; Id., 235 N. Y. 351, 139 N. E. 474. The plaintiffs are executors of Charles E. Appleby, and hold deeds in fee simple from the city of New York, made in 1853 and 1852, one to their testator Appleby, and one to Latou, who later con- veyed to Appleby. The land conveyed consists of two water lots in the city of New York on the east side of North River. This suit was brought in 1914 to restrain the defendant, the city of New York, and its codefendants, lessees of the city's piers, from dredging the land under water conveyed by the deeds, and from using the water over the lots of the plaintiffs as slips and mooring places for vessels alongside those piers.

The Appellate Division and the Court of Appeals denied relief. This is a writ of error under section 237 of the Judicial Code (Comp. St. § 1214), sued out on the ground that by its judgment, the Supreme Court of New York has upheld and enforced statutes of the state enacted in 1857 and 1871 in such a way as to impair the obligation of the plaintiffs' deeds, in violation of section 10, article 1, of the federal Constitution.

The city of New York was established before the Revolution by a charter of Governor Dongan in 1686, and by a subsequent charter of Governor Montgomery of 1730, under both of which it acquired title to the tideway-i. e., the strip between high and low water-surrounding the island of Manhattan. These grants were confirmed by the Constitution of 1777 of the state of New York. By the act of 1807 (Laws 1807, p. 125, c. 115) the state granted to the city a strip of land under water along the westerly side of the Island, which extended from low-water mark westerly into the Hudson river, a distance of 400 feet.

In 1837, the Legislature passed a law (Laws 1837, c. 182), making Thirteenth avenue as laid out by the city surveyor the permanent exterior street along the easterly shore of the North or Hudson river in the district where these lots are. It extended the streets already ready laid out to Thirteenth avenue, and further provided that it should be construed to grant to the city forever the said lands under water easterly of Thirteenth avenue.

In pursuance of this law, ordinances were passed by the sinking fund trustees of New York providing that the lands under water belonging to the city under its several charters might be sold and conveyed by such city to parties desiring to purchase the same, giving priority to the owners of the adjacent uplands. The ordinances were recognized and approved by the state Legislature in chapter 225 of the Laws of 1845, and the city then made the deeds here to be considered.

The grant to Appleby was made on August 1, 1853, for the consideration of $6,367.37; that to Latou on December 24, 1852, for $4,937.50. The one covered land under water between Thirty-Ninth and Fortieth streets and high-water mark and Thirteenth avenue; the other land between Fortieth and Forty-First streets and high-water mark and Thirteenth avenue. The wording and covenants of the deeds were alike, mutatis mutandis. It will be enough to describe the Appleby deed. That granted:

'All that certain water lot or vacant ground and soil under water to be made land and gained out of the Hudson or North River or harbor of New York, and bounded, described, and containing as follows; that is to say:

'Beginning at a point of intersection of the line of original high-water mark with the line of the center of Thirty-Ninth street and running thence westerly, along said center line of Thirty-Ninth street, about 1,065 feet, to the westerly line or side of Thirteenth avenue, said westerly line or side of the Thirteenth avenue being the permanent exterior line of said city, as established by law; thence northerly along the westerly line or side of the Thirteenth avenue, 258 feet 4 1/2 inches, to a line running through the center of Fortieth street; thence easterly along said center line of Fortieth street, about 1,126 feet 11 inches, to the line of original high-water mark; and thence in a southerly direction along said center line of original high-water mark, as it runs to the point or place of beginning, as particularly described, designated, and shown on a map hereto annexed, dated New York, June, 1853, made by John J. Serrel, city surveyor, and to which reference may be had; said map being considered a part of this indenture.

'The premises conveyed being colored pink¹ on said map, be the same dimensions more or less.

'Saving and reserving from and out of the hereby granted premises, so much thereof, as by said map annexed forms part or portions of the Twelfth and Thirteenth avenues, Thirty-Ninth and Fortieth streets for the uses and purposes of public streets. * * *

'To have and to hold the said premises hereby granted to the said Charles E. Appleby, his heirs, and assigns to his own proper use, benefit and behoof forever.'

The pink map of lot referred to in the deed is on the following page.

Appleby in the deed covenanted with the city that, within three months after the city required it, he would built four bulkheads and wharves, and fill in and pave such parts of Twelfth and Thirteenth avenues and Thirty-Ninth and Fortieth streets as lay within the premises described, and keep them in repair, with the provision that in default the city might make them at the cost of Appleby, or sell and dispose of the premises, or any part, at public auction to supply the deficiency, and grant the land and the wharfage to other persons. Appleby further convenanted to pay all taxes on the lot, and not to build the wharves, bulkheads, avenues, or streets until permission was given by the city.

The city covenanted that Appleby and his heirs and assigns should receive:

'All manner of wharfage, cranage advantages or emoluments growing or accruing by or from that part of the said exterior line of the said city, lying on the westerly side of the hereby granted premises fronting on the Hudson river excepting therefrom wharfage from the westerly end of the bulkhead in front of the entire width of the northerly half part of Thirty-Ninth street and the southerly half part of Fortieth street, which were reserved to the city.'

At the time of these deeds, there was no filling between the high-water mark and Twelfth avenue, but since that time, and before 1871, the lots were filled by Appleby from high-water mark to within 4 feet of the easterly side of Twelfth avenue, a distance of approximately 500 feet.

In 1855 (Laws 1855, c. 121), for the avowed reason that grants had been made and piers built which obstructed the river navigation, provision was made for a harbor commission to prepare plans for harbor improvement and as a result chapter 763, Laws 1857, was passed to establish for the harbor bulkhead and pier lines. In its second section it provided:

'It shall not be lawful to fill in with earth, stone, or other solid material in the waters of said port, beyond the bulkhead line or line of solid filling hereby established, nor shall it be lawful to erect any structure exterior to the said bulkhead line, except the sea wall mentioned in the first section of this act, and piers which shall not exceed seventy feet in width respectively, with intervening water spaces of at least one hundred feet, nor shall it be lawful to extend such pier or piers beyond the exterior or pier line, nor beyond, or outside of the said sea wall.'

In the same year, by virtue of the act, the harbor commission established a bulkhead line beyond which there could be no solid filling at 100 feet west of Twelfth avenue.

The necessary effect of this legislation and action, if made effective, was to abolish Thirteenth avenue as a ripa or exterior line on the river, and to prevent the filling of plaintiffs' lots outshore from the bulkhead line, and the making of docks on the lots, and the enjoyment of wharfage at the ends thereof within 100 feet of the city's piers.

By Laws 1871, c. 574, § 6, which amended section 99 of the Act of April 5, 1870 (Laws 1870, c. 137), relating to the government of the city of New York, it was provided that the department of docks should be established, that it should determine upon such plans as they deemed wise for the whole or any part of the water front, and submit them to the commissioners of the sinking fund, who might adopt or reject any such plan. After the plan was adopted, no wharf, pier, bulkhead, basin, dock, slip or any wharf, structure, or superstructure should thereafter be laid out or constructed within the territory or district embraced in the specified upon such plan except in accordance with the plan. The decept partment was authorized in the act of 1871 to acquire, in the name and for the benefit of the city, any and all wharf property in the city to which the city had no right or title, and any rights and easements, and any rights, terms, easements, and privileges, pertaining to any wharf property in the city, and not owned by the city, by purchase or by condemnation. By the act of 1871, the bulkhead line for solid filling was fixed at 150 feet west of Twelfth avenue, instead of 100 feet, as previously fixed.

In 1890, the Secretary of War fixed the same bulkhead line as that fixed by dock commissioner under the act of 1871. Thereupon, in 1894, a condemnation proceeding was begun by the city against Appleby to appropriate both lots. It was delayed for 20 years, presumably for a lack of funds. In 1914 it was discontinued by the city. This action was commenced shortly thereafter.

During the pendency of the condemnation proceeding, the city constructed concrete and steel piers against plaintiffs' objection within the lines of...