83 N.Y.S. 951 | N.Y. Sup. Ct. | 1903
This is an application to annul and vacate certain proceedings had by the city of Hew York through its flock commissioner for the acquisition of such rights in the pier known as Old Ho. 24 as were in owners other than itself. The proceedings had progressed to the stage of taking a large amount of testimony before the commissioners of estimate and assessment, offered both on behalf of the city and the present objectors, before this application was made.
The ground of objection is jurisdictional. It is claimed that the proceedings were initiated under a wrong section of the charter, and that the omission to take a necessary preliminary step renders all subsequent acts jurisdictionally defective.
Briefly stated, the individual proprietors claim that their interest on the one hand, and that of the city on the other, partake of the nature of a tenancy in severalty, and that, therefore, proceedings should have been had under section 822 of the charter, which requires that before taking condemnation proceedings the city should make an attempt to
This proceeding has been brought under section 824 of the charter which provides that in all proceedings for the acquirement of the interests of a person or corporation who is an owner in common or a joint tenant with the city of Yew York, of any wharf property, rights, terms, easements, etc., it shall not be necessary for the commissioner of docks to make any attempt to agree with the owners upon a price before commencing the condemnation proceedings authorized by section 822. The city claims that its ownership with the individual proprietors collectively is joint and that section 824 applies.
There are certain minor questions involved on this motion but it will be necessary to treat at length merely the fundamental one outlined. The issue is clear. The objectors claim that they own the southwesterly half of the pier exclusively; that the city has no interest therein, and that to acquire a valid title thereto the same proceedings must be had as in the case of a piece of private dock property; that the first requisite toward such acquisition is the preliminary attempt to treat or agree with the owners; that this requisite has not been complied with, and that, therefore, the proceeding is fatally defective. Against this claim of an ownership in severalty of a half of the pier the city sets up a claim of a joint or common proprietorship, and ownership, not of a several half.but of an undivided half in each.
The pier was originally constructed in 1809 and extended in 1849. The original construction was pursuant to the city’s plan to extend piers at right angles from the permanent streets into the rivers. Legislation was- invoked as there was doubt as to the precise rights of the corporation against the fronting lot-owners. Chapter 80 of the Laws of 1798 was the first statute applicable. This was substantially re-enacted in 1801 by chapter 129 of the laws of that year, which also added certain new provisions. The gist of these earlier acts was to vest authority in the city to direct piers to be sunk at the expense of the proprietors of fronting lots, and to grant them a common interest in proportion to the breadth of their lots, and upon the proprietors’ refusal to erect the piers, the corporation was authorized to make piers at its own expense and to receive the entire wharfage to its own use.- Section 8 of the Act of 1801 provided: “ That it shall be lawful for the said mayor, aldermen and commonalty to grant to the owners of lots fronting on any of the said streets * * * their heirs and assigns, a common interest in the piers to be sunk in front of such streets in proportion to
Section 4 of the act provided: “ That in all cases where any of the proprietors of lots lying opposite to the places or streets where piers shall have been or may be directed to be sunk, pursuant to the powers contained in the act last aforesaid, .shall neglect or refuse to join with the other proprietors in sinking and making such piers and the bridges thereunto
Pursuant to this act and under resolutions adopted by the common council in 1809, the first portion of the present pier was constructed and the expense borne jointly by the city and the fronting lotowners. In 1849, again under the original act — the provisions remaining practically unchanged under the Revision of 1813 (chap 86, § 230)—the pier was extended to its present length, under a further resolution of the common council, and again the expense was borne jointly, one-third, by the corporation and -two-thirds by the private owners.
In considering now the interests acquired by the several parties to this proceeding we must treat separately of two elements, even as they are separately referred to in the various acts applicable to the construction of piers. First of the piers themselves; secondly of the wharfage rights arising therefrom. So far as the structure itself is concerned, the city and the private owners became joint proprietors. This is irrespective of any statute and merely on general principles of law. That the Legislature, however, contemplated community of interest where there was community of expense has already been adverted to in discussing section 8 of the Act of 1801. Even though the land under water on which the pier was erected was not in the city but in the State at the time of the construction, the nature of the ownership the parties had as between themselves is thereby not altered whatever their rights may have been as against the State. Hor is the nature of this ownership affected by the fact that the city’s docks and wharves are part of its street system and subject to such easements as the public has therein. As between themselves, that is, between the city
Flow as to the wharfage. We are treating here merely of an incorporeal right incident to -the use of the pier. The Laws of 1806 very clearly defined in whom these rights to emolument should be. The city upon paying one-third of the expense should be entitled not only to the slippage or wharfage on the side of the pier adjacent to the extended slips, hut also to one-half of the wharfage to arise from the outermost end of the piers. While section 2 is silent as to who should pay the other two-thirds of the expense, the defect has been supplied by construction.
In Marshall v. Guion, 11 N. Y. 461, the court says: “ I think the remainder .of the section is intended to provide, that if the private owners will contribute two-thirds of the expense of a pier, constructed with a view to enlarge a slip, such owners shall be entitled to all the emoluments arising from the wharfage, except that at the side next the slip and one-half of the end; that in that event the corporation shall contribute one-third of the expense, and have the emoluments arising at the places last mentioned.” p. 475.
Whether we treat this pier as an entirely new construction from the beginning or as a mere enlargement of the slip the rights of the respective parties would be the same. Verplanck v. City of New York, 2 Edw. Ch. 220, 230.
The result of sharing the expense of construction was, therefore, to vest in the city the exclusive right to all the wharfage on the side of the public slips, and to vest in the
We have then this situation:
The parties to the procee'ding are all joint owners, as among themselves, so far as the pier structure is concerned; they are joint owners so far as the surface-user of the pier is concerned; they are joint owners in the wharfage emoluments arising at the outermost end of the pier; and they own severally the wharfage emoluments arising from the two sides of the pier.
Yow, what the city seeks to acquire in this proceeding is the sum total of all these rights and interests so far as they are in private owners. It seeks, to acquire their shares in the wharf-property consisting of structure, user and wharf-
The manner of use made of the pier I do not consider very material. While the payment of taxes and insurance might he relevant evidentiary facts, important under certain aspects in determining nature and quality of ownership, where such facts are the sole guide, they do not so appeal to me here where the legal status is otherwise clearly established. Mor does the claim that there has been partition of the common interests into interests in severalty seem to me to be well founded. Oral partition, while, of course, legally permissible, must be based on a clear intent to effect such a division, a clear purpose to effect a change in the ownership.
Mere occupancy in severalty may be quite consistent with a tenancy in common. The acts proved are insufficient to permit such an inference of intent as is necessary to support the claim.
The other points raised I find without merit.
The motion should be denied. The order hereon should be settled on one day’s notice.
'Motion denied.