Rumsey v. New York & N.E. R. Co.

• Decision Date: 04 June 1889
• Parties: RUMSEY et al. v. NEW YORK & N. E. R. CO.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 423

21 N.E. 1066

RUMSEY et al.

v.NEW YORK & N. E. R. CO.¹

Court of Appeals of New York,

Second Division.

June 4, 1889.

Appeal from supreme court, general term, Second department.

POTTER, J., dissenting.

M. A. Fowler, for appellants.

W. C. Anthony, for respondent.

BROWN, J.

This action was brought to restrain the defendant from operating its road over and upon certain lands lying below high-water mark in the Hudson river, to which the plaintiffs claim title through letters patent issued to them by the commissioners of the land-office of the state. It appears from the findings of the trial court that the plaintiffs own certain uplands situated in the village of Fishkill Landing, in Dutchess county, which border upon the easterly shore of the Hudson river, and that in the year 1881 the defendant built a portion of its railroad in the waters of the river in front of the above-mentioned uplands, and between said lands and the channel of the river, and continued to use and operate its railroad upon said land up to the commencement of this action. That on March 3, 1885, the commissioners of the land-office granted and conveyed to the plaintiffs a certain lot of land under the waters of the river, extending north and south along the whole water front of plaintiffs' uplands, and westward into the river, for a considerable distance beyond the line of the defendant's road. That in or about the year 1848, James Rumsey and Harriet Gill, the plaintiffs' ancestors, through whom they derived their title to the uplands aforesaid, executed and delivered a warranty deed to the Hudson River Railroad Company for a strip of land, consisting in part of the land above high-water mark, and partly of land under the water of the river, retaining, however, a large part of the original shore lien. Upon the strip of land described in said deed the said railroad company constructed a solid embankment, several feet above high-water mark of said river, for their line of railway, which embankment has ever since stood, and still stands, directly between plaintiffs' uplands and the channel of the river, but a considerable distance outside of the original shore line. A culvert or opening was built in said embankment, through which the waters of the river flow into the bay between the said embankment and the original shore line, and the tide rises and falls upon plaintiffs' upland aforesaid. After the construction of its said road, and in or about the year 1868, the Hudson River Railroad Company obtained from the commissioners of the land-office a grant of the land under water covered by its said roadway, and extending westward into the river 200 feet from the center line of its said road. The line of defendant's road is partly within the lands granted to the Hudson River Railroad Company as aforesaid, and partly without said company's lands, and within the lines of plaintiffs' grant. As a conclusion of law the trial court decided that the plaintiffs were not the proprietors of any lands adjacent to the land under water west of the Hudson River Railroad, but that said railroad company was the adjacent proprietor at said point, within the meaning of the statute, which forbids the commissioners of the land-office from making water grants to any person except the proprietor of the adjacent land; and consequently the grant to the plaintiffs, so far as it purports to convey lands west of the railroad, was void, and dismissed the complaint. The judgment entered upon such dismissal having been affirmed by the general term, the plaintiffs appeal to this court.

The powers of the commissioners of the land-office are defined by the constitution to be ‘such as now are or hereafter may be prescribed by law,’ and may be found in 1 Rev. St. (7th Ed.) p. 573. By section 67 of the statute referred to they may grant so much of the lands under the waters of the navigable rivers and lakes, as they shall deem necessary to promote the commerce of the state, etc., but the statute provides: ‘No such grant shall be made to any person other than the proprietor of the adjacent lands, and any such grant that shall be made to any other person shall be void.’ Unless, therefore, the plaintiffs have shown themselves to be the owners of the lands adjacent to the lands described in the letters patent to them, the grant was not within the jurisdiction of the commissioners of the land-office, and is void. From the earliest history of the state, its policy has been to grant the lands under water along the shores of the navigable rivers and lakes for the purpose of promoting the commerce of the state. At the ninth session of the legislature, the commissioners of the land-office were authorized to grant so much of the lands under the waters of the navigable rivers as they should deem necessary to promote the commerce of the state, provided that no such grant should be made to any person other than the proprietor or proprietors of the adjacent lands. Chapter 67, Laws 1786. The policy thus indicated has never been departed from, and in all subsequent statutes upon this subject words of the same meaning and import are to be found. At the time of the enactment of these laws the expression ‘proprietors of the adjacent land’ referred to a distinct class of land-owners, and included all whose uplands were bounded by the shores of the navigable rivers and lakes. All such had ready access to the waters over and from their own lands, and grants of the land below high-water mark were made for the purpose of erecting thereon docks and wharves, from which commerce upon the water could be carried on. In confining the authority of the commisioners to make grants to the upland proprietor, the state not only recognized the right of the land-owner to have access from his own land to the water, but probably adopted the most economical way of promoting intercourse, and building up trade and commerce between its different sections. The upland would furnish materials out of which to construct the necessary docks upon the river, and over it there would be ready access to the surrounding country. Both, therefore, for the purpose of making the necessary structures and improvements on the water front, and also for the purpose of collecting the products of the surrounding country, and distributing the merchandise carried on the water, ownership of the upland would in most cases be a necessity to the dock owner. The same class of proprietors still exist, and it is not perceived but that the reason for confining the grants to such proprietors is as potent at the present time as before the construction of a railroad along the east shore of the river.

As I have already stated, the grants were limited to the owners of the adjacent upland. In this case the railroad is not an owner of the upland. Its road is constructed through the waters of the river, some distance from the shore, leaving a bay of considerable size between the railroad embankment and the original shore line. Into this bay the tide ebbs and flows, and the plaintiffs' lands are washed by the waters of the river. The plaintiffs come, therefore, directly within the class of persons indicated by the statute to whom grants of land under water may be made. But it is very plain that no grant to ...