Sage v. Mayor, Etc., of City of New York

• Decision Date: 12 October 1897
• Citation: 154 N.Y. 61,47 N.E. 1096
• Parties: SAGE v. MAYOR, ETC., OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 61

47 N.E. 1096

SAGE

v.MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 12, 1897.

Appeal from supreme court, appellate division, First department.

Action by Henry W. Sage against the mayor, aldermen, and commonalty of the city of New York. From a judgment of the appellate division (41 N. Y. Supp. 939) affirming a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The plaintiff, as the owner of a parcel of land lying between Ninety-Fourth and Ninety-Fifth streets, on the Harlem river, which is a navigable stream, where the tide reqularly ebbs and flows, traces his title back to a grant made by Gov. Nichols on the 11th of October, 1667, whereby he conveyed to the inhabitants and freeholders of the village of New Harlem certain lands bounded on one side by the ‘Harlem river, or any part of the said river on which this island [of Manhattan] doth abut, * * * together with all the soils, creeks, quarries, woods, meadows, pastures, marshes, waters, lakes, fishing, hawking, hunting, and fowling, and all other profits, commodities, emoluments, and other hereditaments belonging to the said lands and premises within the said bounds and limits set forth, belonging or in any wise appertaining.’ Said grant was confirmed by Gov. Dongan on the 7th of March, 1686; and under this title, by an unbroken series of conveyances, the plaintiff on the 1st of October, 1861, became seised and possessed of all the premises in question, so far as they consist of uplands, or lands which, in a state of nature, were above water. By virtue of this title he also claims all the rights and easements which ordinarily belong to a riparian owner of lands bounded by a navigable river in which the tide ebbs and flows. He further claims to have acquired from the same source title to the tideway, and for some distance into the stream beyond. The city of New York claims title to the land foremrly under water, which used to lie between high and low water mark in front of the uplands belonging to the plaintiff, by virtue of a grant made by Gov. Dongan on the 26th of April, 1686, whereby he conveyed to the mayor, aldermen, and commonalty of the city of New York ‘all the waste, vacant, unpatented, and unappropriated lands lying and being within the said city of New York and on Manhattan Island aforesaid, extending and reaching to the low-water mark in, by, and through all parts of the said city of New York and Manhattan Island aforesaid, together with all rivers, rivulets, coves, creeks, ponds, water, and water courses in the said city and island, or either of them,’ except such portion as had been previously conveyed. Said grant provided that the grantees might, ‘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 grounds in and about the said city and Island Manhattans, 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 low-water mark aforesaid.’ This grant was confirmed by Gov. Montgomerie on the 15th of January, 1730, as well as by an act of the colonial legislature passed on the 14th of October, 1732 (Laws 1732, c. 584), which, in turn, was confirmed by the first constitution of the state (section 35). By chapter 50 of the Laws of 1775 the division of the township of Harlem from the city of New York specifically left the tideway in the latter. The city of New York further claims title to the lands under water in front of, and outside of, the tideway, and extending into the river for a considerable distance, by virtue of certain grants from the state. By chapter 285 of the Laws of 1852 the city was authorized to lay out an exterior street along the Harlem river, and the title of the people was thereby conveyed to the city ‘in and to lands under water from low-water mark to and including the said exterior street,’ subject to a pre-emptive right to purchase by the adjacent owner in case of a sale by the city. Pursuant to chapter 763 of the Laws of 1857, a bulkhead line, or line of solid filling and pier line, was established in the Harlem river, outside the line of low-water mark; and subsequently, under the provisions of chapter 574 of the Laws of 1871, the state, through the commissioners of the land office, conveyed to the city lands under water in said river out to a line parallel with, and 300 feet outside of, the bulkhead line so established. The city claims that, pursuant to said grants and statutes, it has become lawfully seised, and that it now owns in fee all the lands under water in front of the plaintiff's upland as far out into the river as the exterior line above mentioned. In 1887 a plan for the permanent improvement of the water front of the Harlem river between Ninety-Fourth and Ninety-Fifth streets and the adjacent neighborhood was determined upon and adopted by the commissioners of docks, and approved by the commissioners of the sinking fund, pursuant to chapter 517 of the Laws of 1884. The defendants, conforming to said plan, are now building a sea wall along the waters of the Harlem river beyond the line of low-water mark between Ninety-Fourth and Ninety-Fifth streets, and are filling in behind said wall, and expending thereon large sums of money. The intend to continue and complete the wall in conformity to said plan.

The premises claimed by the plaintiff consist in part of lands made entirely out of the Harlem river, and in part of lands still under water, all of which at the date of the Nichols patent, in 1667, was either between high and low water mark, or else was land under water out in that stream beyond the tideway. The filling in of this land was done pursuant to said legislation for the improvement of the water front of the city of New York, and is in accordance with the plan adopted by the dock department. The outer portion of said improvement consists of bulkheads, docks, and piers, traversed by a marginal street, 125 feet wide, running parallel with the river, and situate below the old low-water mark. Between said marginal street and plaintiff's uplands there is a piece of filled-in land, comprising part of the block lying between Ninety-Fourth and Ninety-Fifth streets, which is not appropriated by said plan and improvement to any public use. No proceedings have been taken to acquire any property or rights of the plaintiff, hor has compensation been to him, or provided for his benefit. The main issue, according to the pleadings and the facts agreed upon by the parties, relates to the title to these constructed premises, being the bulkhead, docks, and piers, the lands covered by the marginal street, and those unappropriated to public use, all of which the plaintiff claims under the Nichols charter, while the defendants claim the same under the Dongan and Montgomerie charters, and the various acts of the colonial and state legislatures relating to the subject, as confirmed by the constitution of 1777. According to the deeds constituting the chain of plaintiff's title to the upland, the grants ran to high-water mark until 1852, when a conveyance running to low-water mark was given; and in 1861, when the plaintiff took title, his conveyance purported to cover the lands under water as far out as the bulkhead line established by the harbor commissioners. No claim is made that the plaintiff, as owner of the upland, has applied to the sinking-fund commissioners for any grant of the land in controversy. Upon these facts, which were stipulated, the plaintiff asked at the trial-the demand in the complaint being somewhat broader-that the defendants should be restrained from using said docks and bulkheads and the lands covered by the marginal street until compensation should be made to him therefor, and that he be adjudged to have title in fee simple absolute to the intermediate piece of land lying between the marginal street and his upland not appropriated by the plans of the defendant or the statutes of the state to any public use. The special term dismissed the complaint, holding that the title of the plaintiff under the ancient grants ran only to high-water mark; that his riparian rights as owner of the uplands were subordinate to the right of the public authorities to build thereon and make improvements below low-water mark, essential to navigation and commerce, without compensation; and that the acts of the defendant were not unlawful. The judgment entered upon the decision of the trial court was affirmed by the appellate division, one of the learned justices dissenting, and the plaintiff now comes here. 10 App. Div. 294,41 N. Y. Supp. 938.

Wm. C. De Witt, for appellant.

Francis M. Scott, for respondent.

VANN, J. (after stating the facts).

The lands granted by Gov. Nichols to the inhabitants of the village of New Harlem were bounded on the east by the Harlem river, which was made by specific mention the limit of the conveyance in that direction. After the lands intended to be conveyed had been thus definitely bounded in the deed, a clause followed, which, in the profuse language of ancient documents, described the appurtenances so fully as to give rise to the claim now made, that the boundaries of the grant itself were enlarged thereby. As the western shore of the river below high-water mark consisted largely of ‘meadows, pastures, and marshes,’ it is argued that by including those words, with many others, in the description of the appurtenances, it was intended to include the meadows, pastures, and marshes adjoining the bank of the river, as a part of the grant. Whatever force the argument might otherwise have, it completely fails in this instance, because the long description of appurtenances is ended and limited by the words, ‘within the said bounds and limits set forth’; thus making it clear that there was no intention to push the bounds of the grant out...