83 N.Y.S. 469 | N.Y. App. Div. | 1903
This action was brought to restrain the Forty-second Street and Grand. Street Ferry Railroad Company, the city of New York and all others from constructing a bulkhead at the foot of West Forty-third street in the North river, or across the water lot .lying between Forty-second and Forty-third streets, in accordance with the plan adopted by the department of docks and approved by the commis: sioners of the sinking fund under section 6 of chapter 574 of the Laws of 1871 (amdg. Laws of 1870, chap. 137, § 99) and the acts amendatory thereof. There is no question but that the city acquired title to the land in question through the “ Dongan ” and “ JMontgomrie ” charters and various statutes of the Colonial and State Legislatures enacted thereafter. Having title to these lands, the city could convey the same in fee to a purchaser, and he would acquire thereunder an absolute title in fee to the. property conveyed in. the absence of' the existence of any public right. (Langdon v. Mayor, 93 N. Y. 129.) The plaintiff acquired its title, through various mesne conveyances, from one Lindsley, .who acquired his title thereto by three separate deeds from the mayor, aldermen and commonalty of. the city of New York, two of which deeds were dated in the year 1850 and one in 1852. The two deeds of
By the deed of 1852 Lindsley was granted - a pier, situate at the foot of Forty-third street. in the North river, being about the southern half of the said pier, resting upon a portion of the lands described as follows: “ Beginning at the point formed by the intersection of the northerly side of Forty-third Street with the easterly line or side of the Twelfth Avenue ; running thence southerly along the easterly side of the,Twelfth Avenue to the northerly side of said pier; thence westerly two hundred and eleven feet three inches; thence southerly forty feet five inches ; thence easterly two hundred and twelve feet two inches to the easterly side of the Twelfth Avenue, and, thence southerly to a point where the southerly side of Forty-third Street intersects the said Twelfth Avenue. *' * * Subject to
This grant is claimed to convey title in fee simple to the pier and the land upon which it stands, subject to the rights of the parties of the first part, as above set forth. The pier was afterwards enlarged, and in 1870 the dock commission was created, with power to adopt permanent plans for the city’s water front, which was accordingly done by such commission, and new bulkhead line was established much farther out into the river. The plaintiff was at such time the owner of the pier at the foot of Forty-third street. The pier was enlarged many years ago. In later years the plaintiff has allowed the pier to fall into decay, become dangerous, and a menace to the public health and safety. In 1898 the city caused a fence to be built in front of the pier as a protection to the people from injury. The board of health has also ordered the slip to be filled. This has not yet been done, but at the time of the trial no vestige of the pier remained. Through various conveyances the defendant railroad company has become seized of the water lots lying between Forty-second and Forty-third streets. In December, 1890, the board of docks directed it to build the bulkhead in front of its water lot. If this were done it would prevent plaintiff from coming into the slip at the side of the pier as it was then standing. This action was commenced in 1891 for the purpose of restraining the defendant railroad company and all others from building a' bulkhead on the new bulkhead line and thus interfering with plaintiff’s right to enjoy the use of its pier as it had theretofore. In 1897 the board of docks adopted a resolution rescinding the resolution of 1890 directing the railroad company to build the bulkhead; but in June, 1899, after the city had directed the city engineer to take possession of the pier and close it up as dangerous, the dock commission directed the engineer in chief to proceed with the building of the sea wall
It is the contention of the plaintiff that under its. grants it holds title to the pier in question in fee simple absolute, and that the city has no right to erect a bulkhead that will shut it off from using the pier as it had formerly done, and that it is, therefore, entitled to the relief sought. The city, on the other hand, contends that under the Lindsley deeds it has a perfect right to compel the building- of the bulkhead line in question, and that the plaintiff took under said grants, knowing that Forty-second and Forty-third streets would be extended to Thirteenth avenue on account of that avenue having been duly laid out upon a map showing the location thereof, and that whatever relief the plaintiff is entitled to should be enforced in an action at law and not in an action in equity. It is settled that the reservations contained in the deeds of 1850 had the effect of excepting the lands therein mentioned from the operation of the grant and no title thereto passed by virtue of these deeds to the streets laid down upon the maps, or to the land over which they would pass, when extended, as indicated thereon. Such exception and reference to the map had the effect of designating the land covered thereby as dedicated to the use of the public. . (Consolidated Ice Co. v. Mayor, 166 N. Y. 92, affg. a decision of this court to the same effect, 53 App. Div. 260; Whitmam, v. City of N. Y., 85 App. Div. 468.) Hot only were these streets and avenues laid down upon the maps attached to the deeds of 1850, but they had prior thereto, and in 1811, appeared as existing streets upon a map; and in 1837, pursuant to an- act of the Legislature (Laws of 1837, chap. 182), the land embraced within the description contained in these deeds was plotted- and laid out upon a map, made by the surveyor mentioned in the act in connection with the whole territory in that locality, upon which appeared the bulkhead line on Twelfth avenue, the pier, the subject of .this controversy, and Forty-second and Forty-third streets as extended to the lines of Thirteenth avenue. These maps, taken in connection with the exception contained in the deed, had the effect of clearly showing that the land upon which the grants operated did not cover the land embraced within the streets and avenues which never passed thereunder, but remained and continued to be territory dedicated to the use of a.
It is claimed by the learned counsel for the appellant that, notwithstanding the language used in the act of 1837, it did not have the effect- of establishing the streets, and could not have such effect until proper proceedings had been taken on the part of the city to open the streets, and that until such time the legal situation remained the same as though no streets had been attempted to be laid out. He relies in support of his contention upon Matter of Military Parade Ground (60 N. Y. 319) and kindred cases. It is undoubtedly true that these cases decide that the mere laying out of a street upon a map does not vest title to lands embraced in the proposed streets in the city, nor does it impose any obligation upon the city to continue a proceeding to acquire title to such lands. Under such circumstances, the public acquires no vested right in the street as such, and proceedings for its opening may be discontinued. These cases, however, have no application to the present situation. Here the streets laid out upon the map ran to the line of the river at higli- ' water mark. It was a navigable stream, over the waters of which the public had the right to go for all purposes of commercial use, and the public was invested with the right to an approach to the water and to navigate thereon. Both the street and the water were public highways leading to a particular point, and alternately the public had the right to use the land to reach the water, and to use the water to reach the land. It is clearly shown in all the charters and acts by which the city of New York acquired title to land under water and laid out streets running to the high-water mark, that it was the intention of the city to acquire and of the Legislature to grant this land for the purposes of a highway. The navigable stream could be used for no other purpose, and in order to be available approaches by public streets became a necessity of the situation. Under such circumstances the laying out of public streets upon a map, which carried their boundaries to the high-water mark and the use of the same by the public, established such streets as • public highways to the water, and the general public had a vested interest therein. Forty-second and Forty-third streets were in actual use as streets to the line of high-water mark at the time when the grant was made to Lindsley.
This brings us to a construction of the effect of the grant
In Knickerbocker Ice Co. v. Forty-second St., etc., R. R. Co. (48 N. Y. Super. Ct. 489) Mr. Justice Fbeedman construed the grant which the plaintiff obtained by the deed of 1852 in connection with the prior grants, and summed up his views in these words: “ The plaintiff owns the old pier, and whatever fee the city had to the land upon which it stands and to the strip of four feet between the southerly side of said pier and the southerly line of Forty-third street, as laid out on the map, with a right of way over the water to the south of the last-mentioned line for a reasonable distance, and it also has a lease of the land under water on which the new pier stands. These rights are subject, however, 1. To Lindsley’s covenants in the deeds of 1850, to build, uphold and beep in good repair the south half of Forty-third street and the whole of Twelfth and Thirteenth avenues (so far as described in the deed) as public streets or avenues and highways forever hereafter: 2. To the city’s right to convert the new pier into a public street; 3. To the city’s right of wharf-age accruing from the westerly end of the southerly half of Forty-third street; and, 4. To the right of the defendant, The Forty-second street and Grand Street Ferry R. R. Co., as grantees of Lindsley, to all wharfage accruing from the bulkhead extending, when constructed pursuant to requirement by the city, along the exterior line of the block from the southerly line of Forty-third street to the northerly line of Forty-second street, and necessarily cutting off all access by water to the southerly side of plaintiff’s pier. Of course, the filling in of Twelfth and Thirteenth Avenues under the direction of the city implies the right to fill in the intermediate space.” We are of opinion that the learned judge correctly defined the respective rights of these parties, so far as he assumed to determine the same. It is clear from this view that the covenants in the deed of 1850, requiring the streets appearing upon the map to be kept and maintained as public streets for the use of the public, survived the
It seems evident, therefore, that under the construction of these deeds, assuming that the city conveyed the fee, it was subject to the covenants which ran with the land under which the streets were to-be opened, constructed, kept and maintained, and bulkheads were required to be constructed as the city might direct, and thus the right of the public in and to this property, and of the city to enforce-the covenants, was not destroyed by the deed of 1852, but continued to exist in full force and vigor, and the plaintiff held the property subject to compliance with these conditions. If the deed should be otherwise construed, and its legal purport held to convey title in fee simple absolute, relieved from the covenants contained in the deeds of 1850, a sufficient answer to such contention is that it is void as against the rights of the public, who are entitled to have kept and maintained as public streets that portion of the property which was dedicated to the public use. The city holds its title impressed with such public use, and could not convey title in contravention of the trust in the absence of legislative authority so to do. (Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; St. Vincent Orphan Asylum v. City of Troy, 76 id. 108; Kane v. N. Y. El. R. R. Co., 125 id. 164.) Wharves and piers which are continuations of public streets are held by the city upon the same tenure and impressed with the same trust. It has no distinct proprietary rights, separable from such trust. (Meriwether v. Garrett, 102 U. S. 472.) It follows, therefore, that if the deed of 1852 was intended to operate in legal effect as fully and completely as the appellant contends, it would be void as against the rights of the public in and to these streets, bulkheads, piers and wharves. Nor could the plaintiff acquire any title to this property by adverse possession. (Burbank v. Fay, 65 N. Y. 57; Driggs v. Phillips, 103 id. 77.) There are no facts in the present case out of which the question of adverse possession can arise. The plaintiff entered into possession by itself and its predecessors in
It follows that the judgment appealed from was correct and should be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., •concurred.
Judgment affirmed, with costs.