In re City of New York

• Citation: 168 N.Y. 134,61 N.E. 158
• Parties: In re CITY OF NEW YORK.
• Decision Date: 01 October 1901
• Court: New York Court of Appeals

168 N.Y. 134

61 N.E. 158

In re CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 1, 1901.

Appeal from supreme court, appellate division, First department.

In the matter of the application of the city of New York to acquire title to certain lands for speedway. From an order of the appellate division (69 N. Y. Supp. 994) affirming an order of the special term, affirming the report of commissioners of estimate and assessment, Frederick Booss appeals. Reversed.

Parker, C. J., and Haight, J., dissenting.

Henry Grasse and Theodore H. Friend, for appellant.

John Whalen, Corp. Counsel (Theodore Connoly, of counsel), for respondent.

WERNER, J.

In 1893, Frederick Booss, the appellant terein, was the owner of certain lands in that part of New York City known as Harlem, having a frontage of about 1,200 feet on the westerly shore of the Harlem river. In that year the legislature enacted chapter 102, Laws 1893, entitled ‘An act to lay out, establish and regulate a public driveway in the city of New York,’ commonly known as the ‘speedway law,’ directing the department of public parks of the city of New York to lay out and establish a public driveway, not to exceed 150 feet in width, from ‘a point on One Hundred and Fifty-Fifth street in said city, at or near the intersection of said street and St. Nocholas Place, thence in a general northeasterly direction to a point on the westerly shore of the Harlem river; thence in a general northerly direction on, along or near the said west shore of said Harlem river to connect with Dyckman street.’ Under this act it was made the duty of the counsel to the corporation of the city of New York, upon a written request from said department of public parks ‘to take the necessary means and proceedings to acquire title on behalf of the mayor, aldermen and commonalty of the city of New York, in and to all such real estate not owned by the mayor, aldermen and commonalty of the city of New York, or any right, title or interest therein not extinguishable by public authority which shall be embraced within the lines of the driveway as laid out and established by the said department of public parks.’ Said act, as amended by chapter 8, Laws 1894, and chapter 894, Laws 1895, further provided that ‘the said department of public parks shall lay out as part of said driveway one sidewalk, not less than ten or more than thirty feet in width, on each side of said driveway for the convenience of foot passengers, and shall provide for and construct bridges over or subways under the said driveway so that the same may be crossed otherwise than at grade, but except as to said sidewalks, bridges and subways, no portions of the said driveway shall be used for any other purpose than for riding by equestrians and driving of carriages, and all trucks, carts and vehicles of all kinds for the transportation of merchandise or freight of any description shall be excluded therefrom. No street or other railway shall be laid down on the said drive or any portion thereof. In addition to the restrictions herein contained, the department of public parks may make such other rules and regulations as it may deem advisable for the use of said driveway, and as to the speed of riders and drivers thereon and as to the exclusion therefrom of any kind of vehicles the use of which may injure said driveway or render the same unfit or inconvenient for the purposes thereof.’

Pursuant to the directions of said act, the said driveway was laid out, established, and constructed. It extends along the whole easterly frontage of appellant's lands, and, except where his uplands project within the lines of said driveway, it is built upon the tideway, the title to which is conceded to be in the city of New York. For the taking of the uplands which projected into the line of said driveway, due compensation has been made in these proceedings, and the only question which arises upon this appeal is whether the appellant is also entitled to compensation for the taking and destruction of his riparian rights in and to the Harlem river, upon which his lands abutted before the construction of said driveway. The question is raised by proper exception to the ruling of the commissioners ‘that the city is the owner of the tideway, and, therefore, they cannot make any award for damages for the loss of riparian rights.’ The history of the titles to the uplands and the tideway, respectively, in that part of Manhattan island known as Harlem, and of the law applicable to the same, is so succinctly and clearly set forth in Sage v. City of New York, 154 N. Y. 70, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592, that it will be unnecessary to refer to, or discuss at length, the ancient authorities upon the subjects of governmental jurisdiction and control over tideways and tidewaters and the riparian rights of the owners of uplands abutting upon the same. Appellant's title is derived from the Harlem patentees under the patent of Governor Richard Nicolls, dated October 11, 1667, and the confirmatory patent of Governor Thomas Dongan, dated March 7, 1686. The easterly boundary of the lands described in these grants was the Harlem river, and, under the established law of this state, the title of the upland owners ended at high-water mark. Sage v. City of New York, supra. The title of the city of New York in and to the tideway around the island of Manhattan is derived from the patent granted by Governor Dongan to said city bearing date April 22, 1686, and is fortified by various subsequent confirmatory grants and constitutional and legislative enactments. Sage v. City of New York, supra. By section 14 of the Dongan patent to the city it was provided that the grantees may ‘at any time or times hereafter, when it to them shall seem fit and convenient, take in, fill, and make up and lay out all and singular the lands and grants in and about the said city and island Manhattan's, and the same to build upon or make use of in any other manner or way as to them shall seem fit, as far into the rivers thereof, or that encompass the same, as far as low-water mark aforesaid.’ It is upon this broad provision of said patent that the city of New York bases its claim of right to construct said driveway along the tideway of the Harlem river without compensation to the appellant for the taking and destruction of his riparian rights. In passing upon this claim it is to be remembered that at the time of the Nicolls grant to the ‘Harlem residents' in 1667, and for nearly 20 years thereafter, the title to the tideway remained in the crown as a public trust, precisely as it had always existed since the adoption of Magna Charta. As the grant to the city of the tideway was not made until after the date of the Nicolls patent, under which the appellant claims title, such grants could not limit or extinguish the riparian rights of the grantees under the Nicolls patent, or their successors in title.

What were the riparian rights of the grantees under the Nicolls patent? Their title did not extend below high water and they did not own the tideway. But they were, nevertheless, riparian proprietors upon tide water, with such title, rights, and privileges as belong, at common law, to the owners of upland washed by waters the tide whereof ebbs and flows. ‘They were entitled, as against all except the crown as trustee for the people at large, to certain valuable privileges or easements, including the right of access to the navigable part of the river in front for the purpose of loading and unloading boats, drawing nets, and the like.’ Sage v. City of New York, supra. In Van Dolsen v. Mayor, etc., 21 Blatchf. 455, 17 Fed. 817, Judge Wheeler, in construing these grants, said: ‘There is no question but that the grants stopped at high-water mark, and left the right to the soil under water beyond in the crown, subject to the right of the public to the river as a highway over it.’ Cites Bract. bk. 1, c. 12, 5; Rex v. Smith, Doug. 441; Com. v. Inhabitants of Charlestown, 1 Pick. 180,11 Am. Dec. 161;Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997. This highway was a way to this land when the successive grantees took it and when the orator took his lease of it. So far as the defendants could have any right to it or to the soil under it, the original grantor, the crown, had the same right. ‘The crown after Magna Charta could not grant land bounded on a way, and afterwards remove the way, any more than an individual could. The defendants, as grantees from and under the crown, are limited, as if they had made the grant which the crown made. They could not grant land to a way on land and afterwards remove the way.’

What are the reserved rights of the state or municipality as trustee for the public, in and to the tideway and the waters beyond the same? The city of New York, as successor to the rights of the crown, has ‘the absolute power to improve the water front for the benefit of navigation, free from any interference by the riparian owner, whose sole right as against the state or its municipal grantee, as trustee for the public, is the pre-emptive right to purchase, in case of a sale, when conferred by statute.’ Sage v. City of New York, supra. In the case cited it was held that, under this prerogative, the city had the right to improve navigation for the benefit of the general public, by establishing a bulkhead line and building a sea wall in front of the plaintiff's land, even though it might injuriously affect his private rights. This decision was based upon the broad principle that ‘the purpose for which the supreme authority holds the title to lands under tide water is inconsistent with the power to grant any easement or right to those lands that will prevent it, when the necessities of commerce demand, from ‘wharfing out’ to deep water, so that vessels can load and unload and the interests of navigation be promoted.' The principle was aptly and forcibly stated by Chief Judge Andrews...