42 N.Y.S. 1063 | N.Y. App. Div. | 1897
Lead Opinion
This is a proceeding by the petitioner for the condemnation of land, riparian rights and land under water for the purpose of the Shore drive.
The land in question belongs, to the defendant, Catharine I. Mackay, who, being owner of the upland, obtained a grant from the Land Commissioners, in 1895, of that portion of the land in question which was below high-water mark.
One Wardell was the owner of an adjacent plot of upland on the north side of the Mackay plot, but he never obtained a grant from the Land Commissioners.
Wardell was in possession of and using the dock for a long period prior to the time of the land grant, and also at the time of the condemnation proceedings, but on December 31, 1895, executed a deed to the county of Kings of all his upland and land under water and water rights in front of his premises, together with “ all the docks, piers and bulkheads owned or occupied by the party of the first part, and all water rights appurtenant thereto.”
It is claimed by Mrs. Mackay that inasmuch as she obtained a land grant for the land under water upon which the triangular gore of wharf was built she obtained a title to the dock structure. In other words, that the action of the Land Commissioners in making a. land grant to her, although the' State made no claim to the dock which had been built and was occupied by and in possession of Wardell, resulted in a transfer to her of. the title to the dock.
The Court of Appeals, in the case of Wetmore v. The Brooklyn Gas Light Co. (42 N. Y. 384), held that the public has no right to use' wharves erected by the owners of lands adjacent to the navigable waters of the East river within the permanent water line of the city of Brooklyn although such wharves extend, beyond low-water mark, and were erected without the authority of the State. If the State sees fit to permit such structures to remain, no private individual has any right of entry upon them without the consent of the owners;
It will be observed that the dock as originally erected is within the exterior bulkhead line as laid down under chapter 763 of the Laws of 1857 on the map, which is one of the exhibits in the case,
The structure, if built out below high-water mark and into the navigable waters of the bay, was unquestionably a purpresture and a nuisance. The State could undoubtedly have compelled its removal, but, so long as it remained, the occupant was' entitled te its possession, and could collect wharfage. (The Idlewild, 59 Fed. Rep. 628; affd., 64 id. 603.) But until the State exercised fhis power the dock remained the property of Warded.
Mrs. Mackey never gave any value for the dock, and the utmost that can be said is that the judgment works damnum absque inj uria.
The judgment and order should he affirmed, with costs.
All concurred.
Concurrence Opinion
(concurring):
The riparian owner, Warded, had the right to construct a proper pier or wharf for his own use and that of the public, even though, he had not obtained from the State a grant of the land under water. (Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79; Yates v. Milwaukee, 10 Wall. 497.) This right was subject to general regulation by the Legislature. At the tune of the construction of the pier the only regulations on the subject were the establishment of bulkhead and pier lines. There is nothing to show that the pier in question was improper. It was within the bulkhead line established by law. It extended substantially at right angles to the shore line of Wardell’s upland, and at the time of its construction no part of the land on which it was erected had been granted by the State. It was, therefore, presumptively a lawful structure and the property of Wardell. .
No absolute rule can be laid down as to on what particular lines structures must be extended by riparian owners. The irregularity of the configuration of shore lines prevents that. It may be conceded, without however so deciding, that the matter rests in the
The judgment and order should be affintied, with ten dollars costs.
judgment of condemnation affirmed, with ten . dollars costs and ■disbursements.