People v. Vanderbilt

Sep 15, 1862
Versions:24 How. Pr. 301
38 Barb. 282
1862 N.Y. App. Div. LEXIS 145
By the Court, Ingraham, P.J.

This аction was brought to restrain the defendant from enlarging a pier known as No. 1, North river, adjoining the battery. The right of the defend*292ant to make such enlargement is claimed under a resolution of the common council, passed in 1853, granting permission to the defendant to widen the pier and to extend it to the permanent or exterior line. The right of the corpоration to grant such a permission depends upon their title to the land upon which the рier was to be erected. The claim of title in the corporation is based upon the act of March, 1821, which authorized the corporation to extend the battery into the river not exceeding 600 feet. This act vested in ‍‌​​​‌‌​​​‌​​‌‌​‌‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​‍the corporation the title to the soil under the water so to be filled in. If this were all, there would be no question as to the right of thе defendant to enlarge the pier, except so far as it might after-wards be restrained by the act of 1857, establishing a new exterior line, and which prohibited the building of piers beyond that line. But the same act which gave the right to fill up to the extent of 600 feet, also contаined the limitation on the use of the land so to be made out of the water, by limiting the same ‘'-fоr a public walk, and for erecting buildings and works of defense thereon, but without any power to dispose of the same for any other use or purpose whatever, and without any рoioer of selling it, or any part thereof.”

This restriction upon the use of the land for аny but public purposes of a public walk or for defense, prevented the corporation from selling or otherwise disposing of any part of the land so to be acquirеd, for any private purpose whatever. Any grant or other conveyance of the land for any such private use would be void; and a breach of that condition, ‍‌​​​‌‌​​​‌​​‌‌​‌‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​‍by the corporation, would justify the state in any legal measures to prevent its violation. Wherevеr any such attempt is made to use the land for purposes forbidden by the grant,, the grantor wоuld have a right to interfere; and an application to the court to prevent such misuse of the land would clearly be within the province of a court of equity.

This view of the question at issue is independent of the act of 1857 establishing an exterior line, and prohibiting the *293еxtension of any piers beyond that line. If it be held that the state could interfere to prevent the breach of the condition in the grant independent of that law, the passagе of that act does not deprive the plaintiffs of such right. It is true that a way is provided by which, аfter the pier has been erected, it may be ‍‌​​​‌‌​​​‌​​‌‌​‌‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​‍removed ; but the remedy sought in this action is to prevent the injury to the navigation by prohibiting the erection of the pier. The powеr to compel a removal of an obstruction after it has been created, dоes not prevent an application to the court to prohibit the erectiоn of such obstruction before it is completed.

It is urged for the defendant that this was only filling a рortion of the land under water, which was authorized by the act of 1821. The act of 1860 prohibited the filling beyond the exterior line, and was of itself enough to prevent this obstruction of the river. But independent of that statute, it is idle to say that this was the filling up contemplated by the statutе, when all the authority of the defendant was under the resolution of the common counсil which granted permission to the defendant to widen a pier, and the injunction granted was аgainst erecting the pier which the court found to be unauthorized and a nuisance.

It is alsо contended that the judge erred at the trial in excluding the evidence offered by him to show that the proposed pier would not be an actual nuisance; but no such question wаs involved in the issue. It was immaterial whether it would have been an actual nuisance or nоt. The real question ‍‌​​​‌‌​​​‌​​‌‌​‌‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​‍was whether the erection of the pier was. authorized or not. If there was no legal authority for the erection of the pier, it was a nuisance, and nо evidence was admissible to show that though illegal it would do no harm. In the language of the learned justice before whom the cause was tiled, “ any encroachment upon a public stream was a purpresture, that is, the making of that private which ought to be common to many; and an obstruction in a public river is a nuisance, and may be dealt with as such.” Such an erec*294tion is a nuisance per se, and needs no evidence to prove that, as a matter of fact, after ‍‌​​​‌‌​​​‌​​‌‌​‌‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​‍the erection of it is shown to he in violation of law.

[New York General Term, September 15, 1862.

I see no ground for interfering with the decision below.

The judgment must be affirmed, with costs.

Ingraham, Barnard and Clerke, Justices.]