230 A.D. 299 | N.Y. App. Div. | 1930
The appellants Feltman are concerned with three parcels herein. One damage parcel, 84, concerns upland and structures thereon, the awards for which are not contested. The other two parcels, the awards for which are challenged, are damage parcel 84-A, which concerns the foreshore or tideway to the south of damage parcel 84, and damage parcel 35, which concerns land under water south of damage parcel 84-A, that is, south of the low-water mark as it existed on October 1, 1921.
(1) The Special Term has held that damage parcel 84-A vests in the city of New York as the successor of the town of Gravesend. This is on the theory that the colonial grants to the town of Graves-end, being the Kieft Patent in 1645, the Nicolls Patent in 1668, the Lovelace Patent in 1670, and the Dongan Patent in 1686, carried title to the low-water mark rather than the high-water mark. If this were so, then the grant of the State of New York to the predecessor in title of the appellants Feltman on February 2, 1898, of the foreshore would be a nullity, since on that date the title to the foreshore would still vest in the city of New York as the successor of the town of Gravesend. This holding of the Special Term was error. Excluding grants of land bounded by bays, harbors and inlets, a grant of land lapped by the open sea
Accordingly, the appellants Feltman are entitled to an award for such title as they possess in the foreshore or tideway, by virtue of the State grant in 1898 to their predecessor in title. The grant, it is to be noted, however, is not in the unqualified form of the Huber grant (People v. Steeplechase Pork Co., 218 N. Y. 459); it is a limited or qualified grant similar to the Weidmann grant (People v. Steeplechase Park Co., supra, at p. 469) in that it reserves
(2) A different situation exists with reference to damage parcel 35. This is the land under water south of damage parcel 84-A; south of the low-water mark on October 1, 1921, at which time title in the .upland and foreshore involved herein vested in the city .under the resolutions of the board of estimate and apportionment passed pursuant to legislative authority. (Laws of 1918, chap. 506; Laws of 1920, chap. 731; Laws of 1921, chap. 610.) The Special Term held that the title to this damage parcel 35 vested in the city of New York and made a nominal award to the city of New York. It did so, apparently, on the theory that the foreshore vested in the city of New York by reason of the colonial grants to which reference has been made. The decision of the Special Term in this regard may not be sustained on that theory, but the result, in our opinion, so far as damage parcel 35 is concerned, is correct. The claim to compensation advanced by the appellants, for the land under water, constituting damage parcel 35, may not be sustained for the reason that that land, in so far as it once was owned by the appellants Feltman, was lost to them by submergence which took place prior to October 1, 1921. Under the resolutions referred to, title in the foreshore and the upland was vested in the city of New York, on that day. Prior thereto, there had been no reclamation by the appellants Feltman, either by natural or artificial means, of the land under water, the ownership of which had been lost to them by reason of submergence. This land had become part of the ocean as the ocean encroached upon it. The proprietorship of the appellants Feltman was lost, subject to a return to that proprietorship by the exclusion of the water, either by natural or artificial means. (Matter of City of Buffalo, 206 N. Y. 319, 325, 326, 331.) This latter case limits Mulry v. Norton (100 N. Y. 424, 433). In the Mulry Case (p. 433) it was recognized that proprietorship might be lost in such lands and would not return until the exclusion of the water had been accomplished. This event did not occur before appellants Feltman were divested of title. The fact that the city, subsequent to October 1, 1921, successfully excluded the water by artificial means, did not give rise to a right in the appellants Feltman to claim compensation for such lands, proprietorship of which they had lost and had not regained prior to October 1, 1921. When the city reclaimed this land, it did so in its capacity as the owner of the foreshore and the upland under the resolution of the board of estimate and apportionment heretofore referred to. The statutes under which the city acted also confirmed the city’s action in the matter, as well as the city’s title
The decree, in so far as appealed from, should be modified by striking therefrom the nominal award to the city of New York for damage parcel 84-A, and as so modified affirmed, with costs to appellants. The matter is remitted to the Special Term for the sole purpose of making, by a supplementary decree, an award therefor to the appellants Feltman by reason of their title under the qualified grant, in 1898, of the foreshore or tideway by the State of New York to their predecessor in title.
Lazansky, P. J., Young and Tompkins, JJ., concur; Kapper, J., dissents upon the ground that the grant of the foreshore by the State is nothing more than a mere naked right, for which a nominal award should suffice.
Decree, in so far as appealed from, modified by striking therefrom the nominal award to the city of New York for damage parcel 84-A, and as so modified affirmed, with costs to appellants. The matter is remitted to the Special Term for the sole purpose of making, by a supplementary decree, an award therefor to the appellants Feltman by reason of their title under the qualified grant, in 1898, of the foreshore or tideway by the State of New York to their predecessor in title.