39 Misc. 728 | N.Y. Sup. Ct. | 1903
On November 8, 1865 the mayor, aldermen and commonalty of the city of New York, being the owner of the land under water on the Harlem river between One Hundred and Fifty-first street and One Hundred and Fifty-fifth street, and extending from the then high-water mark to the bulkhead line, or line of solid filling established by the Legislature, granted said land under water to Lucy S. Develin and others, the owners in fee of the adjacent upland. The plaintiffs are the successors in title to these grantees. Prior to the making of this grant the Legislature, by chapter 285, Laws of 1852, had authorized the mayor, aldermen and commonalty of the city of New York to lay out and fix a permanent exterior street along the entire water front of the Harlem river. In 1858 the board of
As to the structures, other than the bulkhead at Seventh avenue, which lie wholly within the lines of the projected streets, a different question is presented.- As has been said the property which they occupy remains the property of the city, and the plaintiffs have no interest in them or concern as to their maintenance unless it is to be spelled out of the grant. That grant included the right to-have and enjoy the wharfage and cranage advantages and emoluments growing or accruing by or from “ that part of the exterior-line of said city lying on the easterly side of the hereby granted premises lying on the Harlem river.” The point at which these-emoluments were to be collected is thus precisely defined, and, reading the whole grant in conjunction with the map accompanying it, there can be no doubt that this exterior line means the easterly line of Exterior street. Before wharfage and cranagecan be realized at that point it is necessary that Exterior street shall be constructed. Even assuming that, when Exterior street has been constructed, the plaintiffs will have the right to takewharfage and cranage opposite the ends of the streets, as well as opposite the intervening land, there is no ground for an infer
There remains the question as to the bulkhead erected by the city at the foot of Seventh avenue, the easterly line of which is the easterly line of Exterior street as shown on the map attached to the grant, and the easterly line of the premises described in the grant. The defendant claims that even if the plaintiffs should be required or authorized to build and actually should build and maintain the streets and avenues mentioned in the grant, including Exterior street, they would have no right under the terms of the grant to any of the wharfage and profits accruing from those portions of the exterior line of Exterior street which lie in front of the several streets running through the premises, and that, as the bulkhead now under consideration is at the foot of one of the avenues excepted from the grant, and the land upon which it is erected belongs to the defendant, the plaintiffs have no right to any of the profits derived therefrom, A similar question was presented and passed upon by the Court of Appeals adversely to the defendant’s contention. Mayor v. Law, supra. I can see no escape from the authority or the reasoning of that case, and I find no material difference between the facts which present the question in this case, and those which presented a similar question in that case. Nor does it in my opinion affect the plaintiffs’ rights in the premises that the city has undertaken to build the bulkhead itself instead of requiring the plaintiffs to build it. It is true that it was said, of grantees under a similar grant in Mayor v. Law, supra, that “ when they had constructed Tompkins street
The form of the decision and decree may be settled on notice, and, since neither party has been wholly successful the decree will be without costs to either party.
Judgment accordingly.