City of New York v. Wilson & Co.

• Citation: 15 N.E.2d 408,278 N.Y. 86
• Parties: CITY OF NEW YORK v. WILSON & CO., Inc.
• Decision Date: 24 May 1938
• Court: New York Court of Appeals

278 N.Y. 86
15 N.E.2d 408

CITY OF NEW YORK
v.
WILSON & CO., Inc.

Court of Appeals of New York.

May 24, 1938.

Ejectment by the City of New York against Wilson & Co., Inc. From a judgment, 253 App.Div. 719, 1 N.Y.S.2d 655, affirming a judgment for plaintiff, defendant appeals.

Modified, and, as modified, affirmed.

LEHMAN, J., dissenting.

[15 N.E.2d 410]

Appeal from Supreme Court, Appellate Division, First Department.
Charles J. Nehrbas, of New York City, for appellant.

William C. Chanler, Corp. Counsel, of New York City (William S. Gaud, Jr., and Arthur Bruan, both of New York City, of counsel), for respondent.

FINCH, Judge.

This is an action in ejectment brought by the city of New York. The city alleges that it is the owner in fee simple and entitled to immediate possession of all the property within the block bounded by Forty-fifth street, Forty-sixth street, First avenue and East river to the extent that it lies outshore of the ‘original high water line of the East River.’ Judgment was demanded for the possession of the property and for the value of its use and occupation from 1926. The answer denied the material allegations of the complaint, set forth defenses of adverse possession and the Statute of Limitations, the exercise of riparian rights, and, with respect to the claim for damages, the six-year Statute of Limitations. Civil Practice Act, § 48.

This action was tried previously, before Mr. Justice Church without a jury. At the close of the trial he entered judgment for the plaintiff, declaring it to be the owner of the property and awarded the city damages of approximately two hundred and fifty thousand dollars. The Appellate Division reversed and granted a new trial upon the ground that the defendant had been wrongfully deprived of its right to a jury trial. 249 App.Div. 391, 292 N.Y.S. 457. At the close of this jury trial, three questions were submitted to the jury which it answered as follows:

‘I. Who has the title in fee of the property in suit, plaintiff or defendant? Answer: Plaintiff.

‘II. If you have answered the first question in favor of the plaintiff, which line on Plaintiff's Exhibit 32 indicates the original mean high water mark of the East River? Answer: The original mean high water line as claimed by the City of New York, indicated by the red line on Plaintiff's Exhibit 62.

‘III. If you answer the first question in favor of the plaintiff, what, if anything, is the amount of damages the plaintiff is entitled to recover as damages for the use and occupation of the premises in question for the period from August 1st, 1928 to March 1st, 1937? Answer: None.’

[15 N.E.2d 411]

The Appellate Division, one justice dissening, affirmed the judgment entered on the verdict of the jury.

The property involved is now covered by substantial brick buildings used for slaughtering and dressing meat, and by a pier bulkhead and platform along the water.

In view of the affirmance by the Appellate Division we must affirm unless there is no evidence to sustain the verdict of the jury or unless there are errors of law in the charge or in the refusal to dismiss the complaint.

The city maintains that the property involved is filled in land formerly under water and that it has title to such land under water or formerly under water.

1. Title of the City.

All the land around Manhattan between the low-water mark and the high-water mark was granted to the city in 1686 by the Dongan Charter. The title thereby obtained was subsequently ratified by the Montgomerie Charter of 1730 and by the several Constitutions of the State. In short we may assume that the colonial charters and State grants gave title to all land under water to the city. The city's title to these several grants has been considered at length in Sage v. Mayor of City of New York, 154 N.Y. 61, 70, 81,47 N.E. 1096,38 L.R.A. 606, 61 Am.St.Rep. 592.

The defendant attempted to show that the property involved in the case at bar had been granted by one Kieft, Director General to George Homs and another prior to the Dongan Charter. A reading of the grant by Kieft, however, shows that it did not include land under water. That grant covers ‘* * * a certain piece of land lying on the island of Manhattans extending in breadth from Teutel bay along the East river till to the Kill of Schepmoes where the Beach tree lies over the water and then in its length from the said River straight into the woods and of the same breadth all along the water one hundred rods (of Thirteen feet to the rod) * * *.’

This language obviously does not include land under water. First, the description of the property is ‘land lying on the island of Manhattans'-not land under water; secondly, the property is described as extending from ‘Teutel bay.’ Turtle bay (spelled Teutel bay in the grant) was an indentation two city blocks in length and the grant extended from Turtle bay and did not include Turtle bay. Finally the property granted is said to stretch along the East river and along the water and it is well settled that when lands are described in a deed or grant as being bounded by a tidal river the title ends at the highwater mark. Sage v. Mayor of City of New York, 154 N.Y. 61, 69, 70,47 N.E. 1096,38 L.R.A. 606, 61 Am.St.Rep. 592.

In the absence of proof to the contrary it must be presumed that this land under water was conveyed as part of the Dongan grant. The city's claim of title to land under water from the time of the Dongan grant to the present is clear. Thus the city had title to the land under water at the time of the Dongan grant and still has such title unless title has been conveyed or lost by adverse possession.

Before taking up the question of conveyance or adverse possession, it is necessary to determine whether the land involved was land under water. The record contains much evidence showing that there has been extensive filling in along the waterfront. The evidence concerning the precise extent of this filling is conflicting. The jury has found that the original highwater mark is shown by the red line on the map identified as Exhibit 62.

This finding concerning the original high-water mark and the effect and the...