114 N.Y.S. 1098 | N.Y. Sup. Ct. | 1909
This is an action for specific performance brought by the vendor against the vendee under a contract for the sale of land on Staten Island. The only question litigated was whether the plaintiff’s title was marketable. The plaintiff proved a chain of title from the ¡¡Norwood patent of 1676, hut the defendant objected that the ¡¡Norwood patent did not convey the tideway or foreshore; that a part of such tideway was included in the property in question, or at least not excluded by plaintiff’s proof, and that, therefore, the title was not marketable.
The case was tried in June and has been exhaustively discussed by counsel. The arguments in writing consist of a brief by plaintiff, an answering brief by defendant, a reply by plaintiff, “ observations on plaintiff’s brief in reply ” by defendant, and “ comments on defendant’s observations on plaintiff’s brief in reply” by plaintiff. The first of these written arguments was submitted in October, 1908, and the last in January, 1909. Meanwhile, the Court of Appeals, on November tenth, handed down its decision in the case of Barnes v. Midland Railroad Terminal Company (193 N. Y. 378). It seems to me that the doctrine there enunciated leads to a decision, that the title of the plaintiff is marketable, even if the premises in question embrace a portion of the land originally lying between high and low water marks. The opinion in the Barnes case begins with a statement of the law established by the case of Town of Brookhaven v. Smith, 188 N. Y. 74, in the following words, viz.:
“ It is clearly pointed out in the Brookhaven case that the
“ The same reasons which underlie the decision in the Brookhaven case as to the rights of littoral and riparian owners apply with even greater force to the right of the public to use the foreshore upon the margin of our tide waters for fishing, bathing and boating, to all of which the right of passage may be said to be a necessary incident. • Except in so far as the jus privatum of the crown has devolved upon littoral and riparian owners, that right now resides in the people in their sovereign capacity. This is the logical result of our decision in the Brookhaven case, and it is in harmony with the development of our history and the spirit of our institutions.”
This I take to be a deliberate formulation of the law of this State. This opinion was written by one of the judges who dissented in the Brookhaven case and was unanimously adopted as the opinion of the court. Its value as a deliberate statement of the fundamental rule of law is enhanced by the fact that the judge who wrote it also wrote the prevailing opinions in several of the important cases which are cited to establish an inconsistent doctrine. See Knickerbocker Ice Co. v. 42d Street R. R. Co., 176 N. Y. 408; Matter of City of New York, 168 id. 134. What is the jus privatum which in the words of the opinion has been abandoned to the proprietors of, the upland ? By the common law of
The following cases with others have been cited as establishing a different rule: Mayor v. Hart, 95 N. Y. 443; Sage v. Mayor, 154 id. 61; Matter of City of New York, 168 id. 134; Knickerbocker Ice Co. v. 42d Street, etc., R. R. Co., 176 id. 408. But these cases concern questions
The Horwood patent, granted under the proprietary government of the Duke of York before Hew York became a crown colony, was bounded to the east by the “ waterside.” J.f I am right as to the rule laid down in the Barnes case, the jus privatum in the foreshore was vested in Horwood even if the word “ waterside ” meant high water mark. The jus publicum remained in the Duke of York as proprietor, passed to the crown on his accession, and finally to the State of Hew York by the Revolution. The public, therefore, had the right to use the foreshore for fishing, bathing, boating and navigation.
If the jus publicum is released or extinguished over any portion of the foreshore, it follows that all the rights which, combined, constitute- a fee are quoad hoc vested in the owner of the adjacent upland.
In 1811 the upland at the point in question was vested in Cornelius Vanderbilt by mesne conveyances from Horwood, some of which bounded the tract on the east in terms by “low water mark.” On June fourth of that year, Vanderbilt gave notice that he intended to apply to the Commissioners of the Land Office for a grant of land under water extending 500 feet from low water opposite to and adjoining' the said land owned by him, The application, with
The jus publicum is vested in the people of the State for the public use. It is subject to control and regulation by the Legislature. Although the grant of 1818 did not authorize Vanderbilt to fill in and so extinguish the jus publicum as to the land so granted, there can be no doubt that he acquired such right by the laws establishing new bulkhead lines. Laws of 1857, chap. 763; Laws of 1878, chap. 88. In the act of 1857 the bulkhead line is called the “ line of solid filling.” The act of 1878 provides, section 2, “It shall he lawful for the owners of * * * land under water granted by the State of Mew York, on the Staten Island side of the harbor of Mew York, to extend or construct piers or bulkheads to the exterior lines, of piers and bulkheads repectively fixed and established by this act.” See also Laws of 1895, chap. 898. The bulkhead lines so established are far outside the location of the land affected by this section, and the land has been filled in as permitted by the acts. The effect of these acts, followed by the filling in, was to relieve the ownership of the land under water so filled in from any public use. As to it the jus publicum was extinguished. Williams v. Mayor, 105 N. Y. 419.
If there were any doubt that the title to the foreshore, subject to the right of the public, was vested in Vanderbilt under the doctrine of the Barnes case, the same result is reached by the practical construction of the parties of the meaning of the term “ waterside.” The term had no tech
The jus publicum or the .right of the public is a right of access to the water for the purpose of navigation, boating, bathing and fishing. Matter of City of Hew York, 168 N. Y. 134. By granting the land under water and authorizing solid filling to the bulkhead, this right, in so far as its exercise requires use of the foreshore, is necessarily extinguished. The land which was the tideway is now a narrow slip of land far inland. It is useless for any of the public purposes included in the jus publicum.
This condition has been created by acts of the Legislature and of the Commissioners of the Land Office, duly authorized by law. The State, therefore, in the interest of commerce, has extinguished the jus publicum over the land in question, and the title in the plaintiff is not burdened by any public use. It is, therefore, a marketable title.
Judgment for the plaintiff with costs. Submit findings and decree on or before February twenty-fourth.
Judgment for plaintiff, with costs.