People v. Lambier

5 Denio 9 | N.Y. Sup. Ct. | 1847

Beardsley, Ch. J.

East rivér is an arm of the sea which the public have a right freely to navigate at all times, as • then-business or pleasure may require or dictate. Warren-street, as originally laid out and opened, extended from Court-street to the East river; and the legality of this street as so established not being drawn in question, it may be assumed that here was a continuous public way upon, as well as between, the street and the river. This being indisputable, looking to the state of things which immediately followed the opening of Warren-street, it becomes necessary to inquire whether this right to pass directly from the street to the river and from the river to the street, has since been destroyed.

It was argued at the bar that the continuity of this way was sundered by filling in with earth the space between the original terminus of the street and the bulkhead in front, as authorized by the act of 1836, over which new made land, as was strenuously contended, no right of way whatever existed.

The act of 1836 authorized the several persons therein named or otherwise indicated, to construct and maintain in the East river, “wharves, docks, bulkheads and piers, on the land under water in front of their lands in the city of Brooklyn,” and - receive dockage and wharfage for the use of the same; but such wharves and bulkheads were not to extend into the river beyond a line specified in said act. (Laws of 1836, p. 739, § 1.) Parmenus Johnson, one of the persons named in this act and to whom this privilege was given, then owned, as he had done at the opening of Warren-street, the preceding year, the same piece of land through which that street passed, and under the authority of said act he erected a bulkhead in the river in front of his land, including that covered by the street, filling up the intervening space with earth so as to transfer the shore of the river to the bulkhead, instead of remaining where it was at the time of opening Warren-street. The distance to which the shore was thus advanced into the stream of the river does not appear in the bill of exceptions, nor, in our view of the law of the case, is it material to be ascertained ; for, whether,the distance was ten feet or ten hundred, we think this extension of the main land to the bulkhead carried with it a corresponding extension of the street, the bulkhead having now bepome for all purposes the shore of the river.

The design of this act of 1836 was to confer privileges on the owners of land adjoining the East river, but not to destroy the right of the public to reach its waters through Warren or any other street which then led to its shore ; nor should the act be so construed as to work a public mischief unless required by words of the most explicit and unequivocal import. (Sprague v. Birdsall, 2 Cowen, 419 ; Martin v. Waddell, 16 Pet. 367.) Here the words do not call for any such construction. There was nothing compulsory on the owners of these lands, for they were as free to refuse as to accept the privileges offered to them. In terms the act authorized piers and bulkheads to be erected, and the bed of the river to be filled up, in front of their lands. In strictness this could hardly be understood to include land over which a perpetual right of way existed in favor of the public, although the fee might be in such owners. At all events, if the terms of the statute are to be understood as authorizing a bulk head to be erected in front of the terminus of Warren-street on the shore of the river, and the intervening space to be filled up and made solid ground, the words used do by no means necessarily or naturally import that the right of passage from the street to the river should be .thereby annihilated. In an act, designed chiefly if not exclusively to subserve individual interests, the words used must leave no doubt that the legislature intended to annihilate or abridge an important public right, before a court should put such a construction upon it as would have that effect. Public burthens are not to be imposed, nor public rights destroyed, by equivocal words or provisions.

It would be an unusual event, to say the least, for the legis Iature at any time to cut off access through a public street to an arm of the sea; and it would be truly extraordinary to hold that such would be the effect of general words in an act granting privileges to particular individuals. We cannot suppose such to have been the intention of the legislature in passing the act of 1836. Had such been the design it would have been plainly expressed, and not left to be gathered, if at all, from general and equivocal words or phrases.

The washing of the river might have left a deposit of earth in front of this land of Johnson, and in process of time have carried the shore out to its present site, the bulkhead. Changes of this description, the results of natural causes, are constantly going on at various places. It is entirely settled that these alluvial additions become the property of the owner of the land against which the deposit is made; (Angell on Tide Waters, ch. 5 ;) and it would hardly admit of a question that in such a case, a public street leading to navigable waters would keep even pace with the extension of the land, so as to preserve an unbroken union between the easement on land and that on such navigable waters. Ajid if this consequence would follow from a change in the land by the action of natural causes, we think it must also be held to follow from one made'by the immediate and voluntary act of the owner of the land on the shore in its original condition.

When the act of 1836 was passed, the public had a right to navigate the waters of the river in front of the shore along the land of Johnson as it then was, and consequently had such right directly in front of the terminus of Warren-street. This right of navigation, as to the whole space to be filled up, was relinquished by the act, for its enjoyment would be impracticable when the work was completed. But it is not to be assumed without express words in the act to that effect, that it was also intended to surrender the right to pass directly between the street and the river, and as this could only be done by extending the street over the new made land, that result must be taken to have followed from this substitution of land for water.

This being our opinion of the law of the case, it is unnecessary to inquire whether what was done by the commissioners appointed under the act of 1835 would, had that been necessary, have carried Warren-street out to the bulkhead as erected under the act of 1836. And for the same reason we are relieved from expressing any opinion upon the evidence of a dedication of that strip of land to the public use. Our decision of the case is made on the ground first stated, and we hold that the filling up by Johnson of the river in front of Warren-street carried with it a necessary and legal extension of the street over the new made land and to the shore of the river at the bulkhead. This street was laid out and opened as a public way from Court-street to the river, thus connecting the right of passage on the land with a like right on the water. And although the owner of the land on the shore has,' for his own benefit, filled up the water way in front of the original terminus of the street, this should not be allowed to destroy the right to pass directly between the street and the river, a result which can only be attained by an extension of the street commensurate with that of the now solid, but new made, ground.

We express no opinion upon the particular views stated by the court below in deciding the questions as presented. We agree in the result at which that court arrived, and hold, as was there decided, that the place at which the obstruction was placed by the defendant, was a part of Warren-street. He was therefore guilty of a nuisance as charged in the indictment, and the verdict of the jury was correct.

McKissock, J. concurred.

Whittlesey, J.

Warren-street was laid out and opened as a street only to the East river so far as it was done by the act of the common council of Brooklyn. The act under which the street was so laid out and opened was that of April 30, 1833, (Laws of 1833, p. 499,) and the proceedings were duly confirmed by the supreme court in 1835. The street thus laid out and opened extended only to the river. Johnson owned the lands on both sides of this street at the bank of the river. The act of May 25, 1836, (Laws of 1836, p. 739,) authorized him to construct wharves, &c. in front of his land. I think this act authorized him so to fill in, not only in front of the land on each side of Warren-street, but in front of Warren-street itself. The fee of the land covered by Warren-stréet was in him subject to the easement of the highway, and he may, therefore, be said to own the land and have the right to fill' up in front of it. I do not think either that Warren-street as laid out, opened and confirmed by the supreme court in August, 1835, extended by the force of such original laying out and confirmation across the land so filled in. There was unquestionably originally necessary estimates and assessments of the benefits and damages upon opening Warren-street, so that the owners of lands taken could obtain compensation, and the property benefited be charged with the expense. This estimate and assessment extended only to the East river as it then was, and if the street was to be continued across the space filled in, a new estimate and assessment might be necessary. It is true if Johnson owned the whole land so filled in, the land taken for such extension of the street would be his, and his . would be the lands benefited by such extension of the street; so that if he continued the owner it would be his own land that would be taken, and his own land to be charged with the expense, and the burden of opening the street would fall wholly upon him. A sale of a portion of the land before any steps were taken to open the street, might introduce other rights and interests, either liable to pay damages or entitled to recover them, unless the opening of the street was provided for in the grant of such portion either expressly or by implication. The commissioners, under the act of April 23,1835, (Laws of 1835, p. 136,) who extended Warren-street, on the map which they were authorized to make, to Johnson’s extreme line, when he had erected his exterior bulkhead, did not, by so mapping a street thus extended, actually create and open a street thus extended, so that the public could travel upon and use it without any further Steps being taken. Nor did the act of February 28, 1839, (Laws of 1839, p. 36,) confirming these proceedings, have any such effect. The whole effect of the acts of these commissioners was to determine where the streets should be; and when the extension of the city demanded the opening of new- streets, they were to be opened according to the map of these commissioners; but if such theoretical streets crossed lands not appropriated for or dedicated to such purpose, there must be the usual estimate and assessment before the private right of property in such streets could be divested. It was precisely so with this extension of Warren-street. When the exigencies of the city required the extension to be opened, it was to be opened in the manner laid down on the commissioners’ map, but the owner of the land thus appropriated would be entitled to compensation unless he had waived it by a previous dedication of the street to public use. The commissioners’ map pointed out where the street was eventually to be. This map was a matter of record.

It has repeatedly been held that if a proprietor of lands through which such mapped streets run, sells and conveys lots in reference to such map, recognizing by the' boundaries of the lands granted, the existence of such mapped streets, such an act is a dedication of the designated street to the public use, to be opened whenever the municipal authorities think proper, without payment to the proprietor of any thing more than a nominal compensation. The principle is that the grantor of such lands or lots had an easement in such street, or a right to use it as a street by virtue of the grant bounding upon or recognizing it. (Matter of Seventeenth-street, 1 Wend. 262; Matter of Lewis-street, 2 id. 472 ; Livingston v. The Mayor of New-York, 8 id. 85; Wyman v. The same, 11 id. 486; In the matter of Furman-street, 17 id. 649 ; In the matter of Thirty-second-street, 19 id. 128 ; Matter of Twenty-ninth-street, 1 Hill, 189; In the matter of Thirty-ninth-street, id. 191.)

In this case Johnson conveyed to Carrigan all the land west of Columbia-street and north of Warren, including Warren-street, having reference to the commissioners’ map. and making the south bounds of the grant the south line of Warren-street, as extended according to such map. If this was all the grant, it would present a state of facts different from any of the cases cited. And as the proprietor had thus conveyed the bed of the street, the effect of saying that by such conveyance the street was dedicated to the public, would be that Johnson, the grantor, would be entitled to have the street opened without paying any damages for the land to be taken. And Carrigan, the grantee, would, so far as he took the fee of the street, only take a mere naked fee and have been compelled to relinquish it for the purposes of a street, without compensation. This, as between him and Johnson would hardly have been equitable, and perhaps if this had been all the grant, the case would not have been brought within the principle of the cases cited.

But this is not the whole land conveyed by this deed. By the same deed Johnson conveys six lots on the south side of Warren-street as extended, being 150 feet front in all, and bounded by Warren-street. Carrigan, the grantee, was interested in the street by reason of these six lots. When Carrigan conveys to the defendant he not only excepts those six lots on the south side of Warren-street, but other six lots of the same front on the north side of Warren-street, both sets of lots having reference to the map of the commissioners. If there is no dedication by virtue of these grants, it will result that there is no street to these twelve lots, six on either side of Warren-street. This circumstance seems to me to bring this case within the principle of the cases cited, particularly that of Thirty-ninth-street, (1 Hill, 191,) and to authorize us to infer that Warren-street as extended, and as laid down on the commissioners’ map, was dedicated to the public, the grantors of the other lots having a right to use it as a street; and hence an obstruction of it is an indictable offence, and a new trial should be denied.