15 N.E.2d 408 | NY | 1938
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *88 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *90 This is an action in ejectment brought by the city of New York. The city alleges that it is the owner in fee simple and entitled to immediate possession of all the property within the block bounded by Forty-fifth street, Forty-sixth street, First avenue and East river to the extent that it lies outshore of the "original high water line of the East River." Judgment was demanded for the possession of the property and for the value of its use and occupation from 1926. The answer denied the material allegations of the complaint, set forth defenses of adverse possession and the Statute of Limitations, the exercise of riparian rights, and, with respect to the claim for damages, the six-year Statute of Limitations.
This action was tried previously, before Mr. Justice CHURCH without a jury. At the close of the trial he entered judgment for the plaintiff declaring it to be the owner of the property and awarded the city damages of approximately two hundred and fifty thousand dollars. The Appellate Division reversed and granted a new trial upon the ground that the defendant had been wrongfully deprived of its right to a jury trial (
"I. Who has the title in fee of the property in suit, plaintiff or defendant? Answer: Plaintiff.
"II. If you have answered the first question in favor of the plaintiff, which line on Plaintiff's Exhibit 32 indicates the original mean high water mark of the East River? Answer: The original mean high water line as claimed by the City of New York, indicated by the red line on Plaintiff's Exhibit 62.
"III. If you answer the first question in favor of the plaintiff, what, if anything, is the amount of damages *92 the plaintiff is entitled to recover as damages for the use and occupation of the premises in question for the period from August 1st, 1928 to March 1st, 1937? Answer: None."
The Appellate Division, one justice dissenting, affirmed the judgment entered on the verdict of the jury.
The property involved is now covered by substantial brick buildings used for slaughtering and dressing meat, and by a pier bulkhead and platform along the water.
In view of the affirmance by the Appellate Division we must affirm unless there is no evidence to sustain the verdict of the jury or unless there are errors of law in the charge or in the refusal to dismiss the complaint.
The city maintains that the property involved is filled in land formerly under water and that it has title to such land under water or formerly under water.
1. TITLE OF THE CITY.
All the land around Manhattan between the low-water mark and the high-water mark was granted to the city in 1686 by the Dongan Charter. The title thereby obtained was subsequently ratified by the Montgomerie Charter of 1730 and by the several Constitutions of the State. In short we may assume that the colonial charters and State grants gave title to all land under water to the city. The city's title to these several grants has been considered at length in Sage v. Mayor (
The defendant attempted to show that the property involved in the case at bar had been granted by one Kieft, Director General, to George Homs and another, prior to the Dongan Charter. A reading of the grant by Kieft, however, shows that it did not include land under water. That grant covers "* * * a certain piece of land lying on the island of Manhattans extending in breadth from Teutel bay along the East river till to the Kill of Schepmoes where the Beach tree lies over the water and then in its length from the said River straight into the woods and of the same breadth *93 all along the water one hundred rods (of Thirteen feet to the rod) * * *."
This language obviously does not include land under water.First, the description of the property is "land lying on the island of Manhattans" — not land under water; secondly, the property is described as extending from "Teutel bay." Turtle bay (spelled Teutel bay in the grant) was an indentation two city blocks in length and the grant extended from Turtle bay and did not include Turtle bay. Finally the property granted is said to stretch along the East river and along the water and it is well settled that when lands are described in a deed or grant as being bounded by a tidal river the title ends at the high-water mark. (Sage v. Mayor,
In the absence of proof to the contrary it must be presumed that this land under water was conveyed as part of the Dongan grant. The city's claim of title to land under water from the time of the Dongan grant to the present is clear. Thus the city had title to the land under water at the time of the Dongan grant and still has such title unless title has been conveyed or lost by adverse possession.
Before taking up the question of conveyance or adverse possession, it is necessary to determine whether the land involved was land under water. The record contains much evidence showing that there has been extensive filling in along the waterfront. The evidence concerning the precise extent of this filling is conflicting. The jury has found that the original high-water mark is shown by the red line on the map identified as Exhibit 62.
This finding concerning the original high-water mark and the effect and the extent of the filling is binding unless all evidence is lacking to support it. Examination shows ample evidence in support of this finding. The red line of Exhibit 62 is identical with the high-water line shown on the Turtle bay farm map of 1835. This *94 map was filed in the New York County Registrar's office in 1835 and is peculiarly relevant to this controversy. It is admitted that the defendant owned the upland above the high-water mark and we find that the earliest deed of the defendant's claim of title in evidence on this trial refers to the property conveyed as being a part of a piece of land known as Turtle bay farm. Like references are found in most of the record deeds introduced by the defendant. There are two other maps introduced by the defendant, showing lines which apparently represent the high-water line and these lines coincide almost exactly with the red line of Exhibit 62. Furthermore there are specific descriptions contained in the defendant's deeds describing that part of the Turtle bay farm conveyed as extending along the shore of the East river. When these locations are plotted (using the specific measurements contained in the deeds) the shore line referred to in the deeds as a boundary accords with the line fixed by the jury. In addition numerous other maps were introduced by the city to support its contention that the original high-water line was well inshore of the present line.
The defendant insists that these maps were improperly admitted. Under sections 389, 389-a of the Civil Practice Act, however, such maps are made admissible where they have been filed for more than twenty years and are made presumptive evidence of their contents.
2. THE RIGHT OF THE CITY TO BRING THIS ACTION.
It is argued that under section 34 of the Civil Practice Act the city cannot maintain an action to recover real property unless it "was seized or possessed of the premises in question within fifteen years before the commencement of the action." This overlooks section 35 of the Civil Practice Act which provides that "the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law," and that the occupation by another person is deemed to have been under and in subordination to this legal title unless *95 such other person has held possession of the premises adversely for fifteen years before the commencement of the action. Since the city has legal record title to these premises, it may maintain this action unless the defendant can show that it has had adverse possession for the required period.
3. THE ADVERSE POSSESSION OF THE DEFENDANT.
The question of adverse possession must be divided into two periods of time — the period before 1871 and the time thereafter. The city contends that by statute enacted in 1871 the land under water became inalienable and, therefore, the adverse possession, if the claim is to be sustained, must be shown to have existed prior to 1871.
The defendant's proof of adverse possession consisted of the testimony of living witnesses and documentary proof. None of the living witnesses recalled the period prior to 1873. Therefore, proof of possession prior to 1871 must rest on the documentary evidence. This evidence in so far as it antedates 1871 consists of (1) an application to the Building Department in 1868 for a permit to construct a building, (2) evidence that taxes were paid on this land from 1860 to 1875, and (3) certain leases commencing in 1865.
The application for the permit to erect a building has little value, if any, in proving adverse possession. Any person whether he be fee owner or lessee or licensee of the city must obtain a permit before erecting a building or waterfront structure. Nor is it material that he states wrongfully that he is the owner of the premises in his application, since the jurisdiction of the Building Department does not extend to the examination of titles. Likewise proof of payment of taxes is not conclusive proof of adverse possession nor is it binding on the city (ConsolidatedIce Co. v. Mayor,
This brings us to the question of leases. Most of the leases referred to obviously related to upland and not to land under water. Of the two leases which, because of the vagueness of the description, might be urged as applying to the locus in quo, we have in the first an express reservation of all the right, title and interest of the city in and to the land lying below the high-water mark in the East river. The second of these leases does not cover the same property as the first. Just what property it does cover is by no means clear by reason of the vagueness of the description. A complete answer to the contention based upon this lease is that, owing to the vagueness of the description, the location of the property covered by the lease presented a question of fact for the jury to decide, and its decision on this issue cannot be disturbed.
From the above it seems clear that the defendant did not offer proof which would permit us to find as a matter of law that a predecessor in title had adverse possession prior to the year 1871. Some evidence of such adverse possession there was, but the question was properly left to the jury, which has found against the defendant.
A great deal of evidence tending to show adverse possession subsequent to 1871 is to be found in the record. This includes testimony of living witnesses that the defendant or predecessors in title were in actual possession from 1873 to date and much documentary evidence. This evidence was sufficient to raise a question for the jury and might even be sufficient to justify a determination of adverse possession as a matter of law, if the property was alienable. The question however, was not submitted to the jury, on the ground *97 that after the year 1871 there could be no adverse possession of this property.
This raises the most important question in the case. Did the legislation of 1871 and 1873 make this property inalienable and, therefore, prevent the defendant from obtaining title by adverse possession?
As already shown, there was ample evidence to sustain the finding of the jury that this property originally was land under water.
Land originally under water is treated as land under water even after it is filled. (People ex rel. Blakslee v. Commissionersof Land Office,
This brings us to the question whether chapter 574 of the Laws of 1871 made land under water inalienable. This statute authorized the Department of Docks to lease the city's waterfront only for a period of ten years. It specifically provided that the "terms `property' and `wharf property,' whenever used therein, shall be taken to mean not only all wharves, piers, docks, bulkheads, slips, and basins, but the land beneath the same, and all rights, privileges, and easements thereto." (§ 6 [§ 99, subd. 12].) (Italics interpolated.) *98
Two years later another statute was enacted which provided among other things that the Commissioners of the Sinking Fund might sell any city property "except wharves and piers." (Laws 1873, ch. 335, § 102.) Significantly this later statute, though repealing a great many earlier statutes, expressly saved from repeal section 6 of the act of 1871 which gave the Department of Docks the powers referred to above and defined property and wharf property as including land under water.
This section 6 also specifically provided that the Department of Docks in the city of New York shall have exclusive charge and control, subject to certain rights of the Commissioners of the Sinking Fund, not only of all wharves, piers, bulkheads, structures and waters adjacent thereto, but also all slips, basins, docks, waterfronts, land under water, and structures thereon. In addition the Department of Docks was directed to make a sole plan for solid filling of the waters surrounding the city and for extending piers into the waters and erecting bulkheads, and said Department of Docks was authorized to acquire in the name and for the benefit of the city, any and all wharf property in the city to which the corporation of the city then had no right or title.
In Matter of City of New York (Piers Old Nos. 8-11) (
4. CHARGE TO THE JURY.
After the court had fully charged the jury concerning adverse possession it granted a request of the plaintiff to charge that mere lapse of time furnished no defense for encroachment of a public right and that the jury should not consider that the city had lost any rights because its public officers sat by and failed to exercise due diligence. The appellant contends that this was equivalent to taking the question of adverse possession out of the case entirely. A reading of the entire charge to the jury and the requests to charge shows that the only impression this could have made on the jury was that intended by the court, that is, that the defendant could acquire title by adverse possession if such adverse possession commenced prior to 1871, but that mere lapse of time during which the officials of the city failed to take action did not estop the city from asserting its rights and did not take the place of proof of an adverse possession prior to 1871.
5. RIPARIAN RIGHTS OF THE DEFENDANT.
The defendant contends that the judgment giving possession of the property to the city is erroneous in that it disregards defendant's riparian rights. Riparian rights are rights of navigation, boating, fishing and the like, including the right of access to the water for such purposes.
We thus come to the question of the pier and the platform of piles which is located outshore of the present high-water mark.
Since 1907 the defendant has occupied a pier under leases and permits granted by the Dock Department and has paid rent to the city for this privilege. The term of the last of these leases and permits expired in 1925. In these instruments the defendant acknowledged the city's right to possession. This alone may prevent the defendant from claiming access to this pier. *101
In addition under section 41 of the Civil Practice Act, where there has existed a relationship of landlord and tenant and there has been no surrender of possession, the possession of the tenant is deemed the possession of the landlord until the expiration of fifteen years after the last payment of rent. In a somewhat similar case we affirmed a dismissal of the complaint on the ground that the lessee is estopped from challenging the city's title. (Gates Co. v. City of New York,
Nevertheless the defendant contends that as owner of the upland it is entitled to riparian rights which include the right to erect and maintain wharves and piers. This is the general rule, but it is subject to a well-recognized exception that where the land has been appropriated to some public use, the riparian rights of the upland owner may be restricted. (Trustees of Townof Brookhaven v. Smith,
In Matter of Del Balso Holding Corp. v. McKenzie (
Such riparian rights may not be impaired by reason of an illegal fill extending beyond the upland ownership. (Tiffany v.Town of Oyster Bay,
It may well be that the defendant has no right to use this pier on piles which it had leased if there remains otherwise available to this defendant such access to navigable water, and it would seem from the photographs and exhibits in the case at bar that there is plenty of room for such access outside of this pier. Accordingly the mere leasing of this pier by the defendant from the city would not abrogate the riparian rights of this defendant. Because the defendant sought to increase its rights by the lease of this pier, no valid reason appears why this should be held to cancel the riparian right of access which it already had. Evidently, what it was endeavoring to do was to increase its riparian rights, and not to lose what it had. If the city desires to abrogate this riparian right to reach navigable water belonging to defendant as the owner of the original upland, the city would have to take the same in condemnation for just compensation.
The city further contends that because, by the enactment of chapter 574 of the Laws of 1871 and chapter 335 of the Laws of 1873, heretofore referred to, the Legislature has made this land inalienable, therefore this waterfront has been dedicated wholly to the public and the riparian right of access belonging to this defendant has been thereby abrogated. To sustain its contention the city cites Trustees of Town of Brookhaven v. Smith
(
We conclude, therefore, that the court properly charged the jury on the question of the location of the mean high-water mark line, adverse possession and the effect of the statutes of 1871 and 1873. The jury returned a verdict in favor of the city, which on all points is supported by ample evidence. The Appellate Division having affirmed, we cannot disturb this judgment except for errors of law. The only error of law is the failure to recognize that this defendant, being concededly the owner of the original upland, still owns a right of access to navigable water with the right to maintain a pier for this purpose if desired. As already noted, the plaintiff is entitled on the merits to an affirmance of the judgment appealed from except for the right of reasonable access to navigable water remaining in the defendant. The judgment appealed from is modified so that nothing contained therein shall be construed to abrogate the right of the defendant, as owner of the original upland, to have access to navigable water.
The judgments should be modified in accordance with this opinion and as so modified affirmed, without costs. (See
CRANE, Ch. J., O'BRIEN, HUBBS, LOUGHRAN and RIPPEY, JJ., concur; LEHMAN, J., dissents on the ground that the defendant proved as a matter of law adverse possession beginning before 1871.
Judgment accordingly. *104