1. Upon review of a decision of a state court enforcing a state
law over the objection that it impairs the obligation of a prior
contract, this Court must decide whether there was a contract, what
was its proper construction and effect, and whether its obligation
was impaired. P.
271 U. S.
379.
2. And although the construction and effect of the contract
involved depend on questions of state law, this Court must
determine those questions, independently of the conclusion of the
state court.
Id.
3. Whether grants by a city of land under navigable waters to
private persons, free from subsequent regulatory control over the
water and the land, were within the power of the city and the
legislature is a state question, to be determined by the law of the
state as it was when the deeds were executed. P.
271 U. S.
380.
4. Upon the American Revolution, all the proprietary rights of
the Crown and Parliament in, and all their dominion over, lands
under tidewater vested in the several states, subject to the powers
surrendered to the national government by the Constitution of the
United States. P.
271 U. S.
381.
5. Deeds made by the City of New York in 1852-53, with approval
of the legislature, conveying lots below tidewater in the Hudson
River extending out from the original high water mark to a line
then established as the exterior line and
ripa of the
city, with the right to fill in, and with all the advantages and
emoluments of wharfage on that line at the ends of the lots, were
within the power of the legislature and city, being made on
valuable consideration and for the public purpose of harbor
development, and they conveyed both the
jus publicum and
the
jus privatum, to be regained by the state and city
only through condemnation proceedings. Pp.
271 U. S. 381,
271 U. S. 384,
271 U. S. 388,
271 U. S.
399.
Page 271 U. S. 365
6. Delay of the grantees in filling in such lots did not
preserve in the city the power to regulate navigation over the
parts unfilled next the river,the grants being in fee simple
absolute, with no covenant by the grantees to fill in, or other
breach of duty in that regard. P.
271 U. S.
399.
7. Subsequently to these grants, the state, by Acts of 1857 and
1871, established a bulkhead line inshore from the exterior line
bounding the lots, forbade solid filling, but permitted piers,
beyond the bulkhead line, and limited the water spaces permissible
between piers to 100 feet. The same bulkhead line was adopted later
by the Secretary of War. The city built piers out from that line at
the ends of streets crossing or adjacent to the granted premises,
leased accommodations on the piers, constructed a platform or
dumping board overhanging one of the waterlots, and dredged and
appropriated the submerged lots, both inside and outside of the
bulkhead line, with the result that the lots were converted into
slips for accommodation of the city's tenants, in use constantly by
vessels moored and fastened alongside the piers, discharging
cargo.
Held:
(1) That these acts by the city were in trespass upon the rights
of the lot owners, and that the state laws of 1857 and 1871, as
applied by the state court to uphold the city's conduct, were an
unconstitutional impairment of the contracts with the lot owners.
P.
271 U. S.
398.
(2) That the order of the Secretary of War fixing the bulkhead
line but allowing pier extensions beyond it did not revest the city
with proprietary or regulatory rights over the lots outshore from
the bulkhead line or the parts still unfilled within that line
inconsistent with the rights of the lot owners to fill in to that
line and to erect piers beyond it in accordance with the federal
regulation. P.
271 U. S.
400.
(3) That owners were entitled to an injunction against the
above-described trespasses of the city. P.
271 U. S.
402.
235 N.Y. 351, 199 App.Div. 539, reversed.
This is a writ of error to review the judgment of the Supreme
Court of New York as affirmed by the Court of Appeals.
Appleby
v. City of New York, 199 App.Div. 539; 235 N.Y. 351. The
plaintiffs are executors of Charles E. Appleby, and hold deeds in
fee simple from the City of New York, made in 1853 and 1852, one to
their testator Appleby and one to Latou, who later conveyed
Page 271 U. S. 366
to Appleby. The land conveyed consists of two water lots in the
City of New York on the east side of North River. This suit was
brought in 1914 to restrain the defendant, the City of New York,
and its codefendants, lessees of the city's piers, from dredging
the land under water conveyed by the deeds, and from using the
water over the lots of the plaintiffs as slips and mooring places
for vessels alongside those piers.
The Appellate Division and the Court of Appeals denied relief.
This is a writ of error under § 237 of the Judicial Code, sued
out on the ground that, by its judgment, the Supreme Court of New
York has upheld and enforced statutes of the state enacted in 1857
and 1871 in such a way as to impair the obligation of the
plaintiffs' deeds in violation of § 10, Article I, of the
federal Constitution.
The City of New York was established before the Revolution by a
charter of Governor Dongan in 1686, and by a subsequent charter of
Governor Montgomery of 1730, under both of which it acquired title
to the tideway,
i.e., the strip between high and low
water, surrounding the island of Manhattan. These grants were
confirmed by the Constitution of 1777 of the State of New York. By
the Act of 1807, Laws of 1807, p. 125, c. 115, the state granted to
the city a strip of land under water along the westerly side of the
Island, which extended from low water mark westerly into the Hudson
River, a distance of 400 feet.
In 1837, the legislature passed a law, Laws of 1837, c. 182,
making 13th Avenue as laid out by the city surveyor the permanent
exterior street along the easterly shore of the North, or Hudson,
River in the district where these lots are. It extended the streets
already laid out to 13th Avenue, and further provided that it
should be construed to grant to the city forever the said lands
under water easterly of 13th Avenue.
Page 271 U. S. 367
In pursuance of this law, ordinances were passed by the Sinking
Fund Trustees of New York providing that the lands under water
belonging to the city under its several charters might be sold and
conveyed by such city to parties desiring to purchase the same,
giving priority to the owners of the adjacent uplands. The
ordinances were recognized and approved by the state legislature in
c. 225 of the Laws of 1845, and the city then made the deeds here
to be considered.
The grant to Appleby was made on August 1, 1853, for the
consideration of $6,367.37; that to Latou on December 24, 1852, for
$4,937.50. The one covered land under water between Thirty-Ninth
and Fortieth Streets and high water mark and 13th Avenue; the other
land between Fortieth and Forty-First Streets and high water mark
and 13th Avenue. The wording and covenants of the deeds were alike,
mutatis mutandis. It will be enough to describe the
Appleby deed. That granted:
"All that certain water lot or vacant ground and soil under
water to be made land and gained out of the Hudson or North River
or harbor of New York, and bounded, described, and containing as
follows; that is to say:"
"Beginning at a point of intersection of the line of original
high water mark with the line of the center of Thirty-Ninth Street
and running thence westerly, along said center line of Thirty-Ninth
Street, about 1,065 feet, to the westerly line or side of 13th
Avenue, said westerly line or side of the 13th Avenue being the
permanent exterior line of said city, as established by law; thence
northerly along the westerly line or side of the 13th Avenue, 258
feet 4 1/2 inches, to a line running through the center of Fortieth
Street; thence easterly along said center line of Fortieth Street,
about 1,126 feet 11
Page 271 U. S. 368
inches, to the line of original high water mark, and thence in a
southerly direction along said center line of original high water
mark, as it runs to the point or place of beginning, as
particularly described, designated, and shown on a
271
U.S. 364exh1|>map hereto annexed, dated New York, June,
1853, made by John J. Serrel, City Surveyor, and to which reference
may be had, said map being considered a part of this
Indenture."
"The premises conveyed being colored pink on said map, be the
same dimensions more or less."
"Saving and reserving from and out of the hereby granted
premises so much thereof as by said map annexed forms part or
portions of the 12th and 13th Avenues, Thirty-Ninth and Fortieth
Streets for the uses and purposes of public Streets. . . ."
"To have and to hold the said premises hereby granted to the
said Charles E. Appleby, his heirs, and assigns to his own proper
use, benefit, and behoof forever."
|
271
U.S. 364exh1|
image:a
Appleby, in the deed, covenanted with the city that, within
three months after the city required it, he would built four
bulkheads and wharves, and fill in and pave such parts of 12th and
13th Avenues and Thirty-Ninth and Fortieth Streets as lay within
the premises described, and keep them in repair, with the provision
that, in default, the city might make them at the cost of Appleby,
or sell and dispose of the premises, or any part at public auction
to supply the deficiency, and grant the land and the wharfage to
other persons. Appleby further convenanted to pay all taxes on the
lot, and not to build the wharves, bulkheads, avenues, or streets
until permission was given by the city.
The city covenanted that Appleby and his heirs and assigns
should receive:
"all manner of wharfage, cranage advantages, or emoluments
growing or accruing by or from that part of the said exterior line
of the said city lying
Page 271 U. S. 369
on the westerly side of the hereby granted premises fronting on
the Hudson River excepting therefrom wharfage from the westerly end
of the bulkhead in front of the entire width of the northerly half
part of Thirty-Ninth Street and the southerly half part of Fortieth
Street, which were reserved to the city."
At the time of these deeds, there was no filling between the
high water mark and 12th Avenue, but, since that time and before
1871, the lots were filled by Appleby from high water mark to
within 4 feet of the easterly side of 12th Avenue, a distance of
approximately 500 feet.
In 1855, Laws 1855, c. 121, for the avowed reason that grants
had been made and piers built which obstructed the river
navigation, provision was made for a harbor commission to prepare
plans for harbor improvement and, as a result, chapter 763, Laws
1857, was passed to establish for the harbor bulkhead and pier
lines. In its second section, it provided:
"It shall not be lawful to fill in with earth, stone, or other
solid material in the waters of said port beyond the bulkhead line
or line of solid filling hereby established, nor shall it be lawful
to erect any structure exterior to the said bulkhead line except
the sea wall mentioned in the first section of this act, and piers
which shall not exceed seventy feet in width respectively, with
intervening water spaces of at least one hundred feet, nor shall it
be lawful to extend such pier or piers beyond the exterior or pier
line, nor beyond, or outside of the said sea wall."
In the same year, by virtue of the act, the harbor commission
established a bulkhead line beyond which there could be no solid
filling at 100 feet west of 12th Avenue.
The necessary effect of this legislation and action, if made
effective, was to abolish 13th Avenue as a
ripa or
exterior line on the river, and to prevent the filling of
plaintiffs' lots outshore from the bulkhead line, and the making of
docks on the lots, and the enjoyment of wharfage at the ends
thereof within 100 feet of the city's piers.
Page 271 U. S. 370
By Laws 1871, c. 574, which amended § 99 of the Act of
April 5, 1870, relating to the government of the City of New York,
it was provided that the department of docks should be established,
that it should determine upon such plans as they deemed wise for
the whole or any part of the waterfront, and submit them to the
Commissioners of the Sinking Fund, who might adopt or reject any
such plan. After the plan was adopted, no wharf, pier, bulkhead,
basin, dock, slip, or any wharf, structure, or superstructure
should thereafter be laid out or constructed within the territory
or district embraced in the specified upon such plan except in
accordance with the plan. The department was authorized in the Act
of 1871 to acquire, in the name and for the benefit of the city,
any and all wharf property in the city to which the city had no
right or title, and any rights and easements, and any rights,
terms, easements, and privileges pertaining to any wharf property
in the city, and not owned by the city, by purchase or by
condemnation. By the Act of 1871, the bulkhead line for solid
filling was fixed at 150 feet west of 12th Avenue, instead of 100
feet, as previously fixed.
In 1890, the Secretary of War fixed the same bulkhead line as
that fixed by Dock Commissioner under the Act of 1871. Thereupon,
in 1894, a condemnation proceeding was begun by the city against
Appleby to appropriate both lots. It was delayed for 20 years,
presumably for a lack of funds. In 1914, it was discontinued by the
city. This action was commenced shortly thereafter.
During the pendency of the condemnation proceeding, the city
constructed concrete and steel piers against plaintiffs' objection
within the lines of West Thirty-Ninth Street, of Fortieth Street,
and Forty-First Street, beginning at or near 12th Avenue and
extending westerly to and beyond 13th Avenue. It placed thereon
iron or steel sheds and leased these to tenants excluding the
public from the piers. The piers have numerous doors and windows
which open onto
Page 271 U. S. 371
the water over the Appleby lots, so that boats are constantly
moored and fastened alongside of the piers and in the adjoining
slips upon plaintiffs' premises and discharge their cargoes and
freight into the sheds. The city also constructed an overhanging
dumping board or platform extending northerly from the Thirty-Ninth
Street pier for the use of its tenants over the same water. The
city has from time to time dredged plaintiffs' premises between its
piers without their consent to a depth of about 20 feet, and
threatens to continue to do so. West of the bulkhead line, the
depth of water varied from 4 feet in 1884 to 20 feet now. East of
the line, the bottom was an average depth of 3 feet, and was
dredged to 16 or 20 feet as far east as 50 feet from the west side
of 12th Avenue, or 100 feet inside the bulkhead line. The record
contains reports in 10 years, between 1895 and 1905, showing
dredging of about 150,000 cubic yards in the two slips or basins.
From its piers, made more valuable by the use of these slips and
mooring places, the city receives substantial rentals and income
from its lessees and other occupants of the piers.
No request was ever made by the city that Appleby should fill
the streets, which he covenanted to fill on the city's call, and
not to fill until that. After the Act of 1871, the city built the
piers, and the streets and avenues specified in the deeds, so far
as they have been built. 13th Avenue, being outshore from the
bulkhead line fixed in 1857 and 1871, was never filled.
In January, 1917, the plaintiffs were required to pay as back
taxes upon these lots the sum of $74,426.01.
The prayer of the petition is that the city and its tenants and
the other defendants be enjoined from using plaintiffs' lots as a
slip or permanent mooring place, and from dredging them.
The Special Term of the Supreme Court held that the deeds here
in question conveyed a fee simple title to the
Page 271 U. S. 372
plaintiffs, carrying both the
jus publicum and the
jus privatum, and that their rights could not be affected
by the Act of 1857 and the Act of 1871, or the orders of the Dock
Commissioners under that Act, but that the establishment of the
bulkhead line by the Secretary of War in 1890 made the waters of
the Hudson River westerly of that line open and in use for purposes
of commerce and navigation, and that no action to restrain or
prevent the use of that water for loading or unloading at the city
piers would lie, but that the city was without right to dredge any
soil or part of the granted premises east of the bulkhead line, and
should be enjoined from doing so. The Special Term refused damages
for the dredging which had been done for failure to adduce proper
evidence as to what the damages were and allowed only a nominal
recovery.
On appeal, the Appellate Division also held that the deeds
carried to the plaintiffs the
jus publicum and the
jus
privatum from the city and the state, and that the plaintiffs'
rights under the deeds could not be affected by the Acts of 1857
and 1871, but closed its findings and conclusions as follows:
"The federal statutes and the action of the Secretary of War in
establishing a bulkhead line across the granted premises thereby
constituted the waters beyond said bulkhead line navigable waters,
and though the federal government established a pierhead line
further west in the river, as the federal government did not
attempt to provide regulations as to the building of piers,
wharves, or docks within said space, the state government had a
right to regulate the construction of docks, piers, and wharves
between said bulkhead line and pierhead lines, and having by
Chapter 763 of the Laws of 1857 provided that no piers should be
erected within 100 feet of another pier, and having by Chapter 574
of the Laws of 1871, as supplemented and amended, authorized the
City of New
Page 271 U. S. 373
York, through its officials, to adopt a plan for waterfront of
the City of New York, including the erection of piers thereon, and
the city having pursuant to said resolution adopted a plan
requiring piers to be erected in Thirty-Ninth, Fortieth, and
Forty-First Streets, and said piers having been erected, thereby
prevented the plaintiffs from erecting any pier, wharf, or other
structure whatsoever upon their premises under water between the
said bulkhead line established by the Secretary of War and 13th
Avenue."
"The plaintiffs are not entitled to an injunction restraining
the City of New York from using or authorizing the use by others of
the plaintiffs' premises either within or without the federal
bulkhead line, for the purpose of mooring, docking and floating
boats."
The Court of Appeals, in its opinion affirming the decree of the
Appellate Division, after referring to the laws of 1857 and 1871 as
the basis of the contention of the city that the plaintiffs were
not entitled to relief, said:
"When the Secretary of War established the bulkhead line, the
title of the state, the city, and its grantees beyond such line was
subordinated to such use of the submerged lands as should be
required for the public right of navigation. No private property
right requiring compensation was taken or destroyed by the
establishment of such line. The owner's title was subject to the
use which the United States might make of it. . . . Plaintiffs have
no authority to fill in any portion of their lands west of the
bulkhead line. The City of New York, in the execution of its plans
for the improvement of the waterfront westerly of such line for the
purpose of navigation, invaded no right of plaintiffs."
The court said further that, if the plaintiffs' lots easterly of
the bulkhead line had been actually filled in, they would no longer
be lands under water, and would be completely subject to the
plaintiffs' control, but that, so long as they remained unfilled
and under water, they were subject
Page 271 U. S. 374
to the sovereign power of the state and city to regulate the use
of the water over them for purposes of navigation, and accordingly
held that, in respect to them, the city had invaded no right of the
plaintiffs. The opinion of the Court of Appeals indicates that
previous decisions of the court contain dicta in respect to the
jus publicum and
jus privatum that cannot be
sustained.
Page 271 U. S. 379
MR. CHIEF JUSTICE TAFT, after stating the case as above,
delivered the opinion of the Court.
The plaintiffs, in their writ of error, charge that the judgment
of the Supreme Court of New York, as affirmed by the Court of
Appeals, has interpreted and enforced the Acts of 1857 and 1871 in
such a way as to impair the obligation of the contract in their
deeds.
The questions we have here to determine are, first, was there a
contract; second, what was its proper construction and effect, and
third, was its obligation impaired by subsequent legislation as
enforced by the state court? These questions we must answer
independently of the conclusion of that court. Of course, we should
give all proper weight
Page 271 U. S. 380
to its judgment, but we cannot perform our duty to enforce the
guaranty of the federal Constitution as to the inviolability of
contracts by state legislative action unless we give the questions
independent consideration. It makes no difference what the answer
to them involves; whether it turns on issues of general or purely
local law, we cannot surrender the duty to exercise our own
judgment. In the case before us, the construction and effect of the
contract involved in the deeds and covenants depend chiefly upon
the extent of the power of the state and city to part with property
under navigable waters to private persons, free from subsequent
regulatory control of the water over the land and the land itself.
That is a state question, and we must determine it from the law of
the state as it was when the deeds were executed to be derived from
statutes then in force and from the decisions of the state court
then and since made; but we must give our own judgment derived from
such sources, and not accept the present conclusion of the state
court without inquiry.
Ordinarily this Court must receive from the court of last resort
of a state its statement of state law as final and conclusive, but
the rule is different in a case like this.
Jefferson
Bank v. Skelly, 1 Black 436,
66 U. S. 443;
University v. People, 99 U. S. 309,
99 U. S. 321;
New Orleans Water Co. v. Louisiana Sugar Company,
125 U. S. 18,
125 U. S. 38;
Huntington v. Attrill, 146 U. S. 657,
146 U. S. 684;
Mobile & Ohio Railroad v. Tennessee, 153 U.
S. 486;
Louisiana Railway & Navigation Co. v.
Behrman, 235 U. S. 164,
235 U. S.
170-171;
Long Sault Co. v. Call, 242 U.
S. 272,
242 U. S. 277;
Columbia Railway v. South Carolina, 261 U.
S. 236,
261 U. S.
245.
We must also consider here what effect the action of the United
States in its dominant control over tidal waters for the
preservation and promotion of navigation has had in affecting or
destroying the rights of the plaintiffs
Page 271 U. S. 381
claimed to have been impaired by the Acts of 1857 and 1871, and
to consider whether such action has rendered the state legislative
impairment innocuous and deprived plaintiffs of the right to
complain of it.
Upon the American Revolution, all the proprietary rights of the
Crown and Parliament in and all their dominion over lands under
tidewater vested in the several states, subject to the powers
surrendered to the national government by the Constitution of the
United States.
Shively v. Bowlby, 152 U. S.
1. The rights of the plaintiffs in error under the two
deeds here in question, with their covenants, are to be determined
then by the laws of New York as it was at the time of their
execution and delivery. They were not deeds of gift; they were
deeds for valuable consideration paid in money at the time, and a
large amount of taxes on the lots have been collected from the
plaintiffs by reason of their ownership. The principle applicable
in the construction of grants of lands under navigable waters in
the State of New York was announced by the Supreme Court of Errors
in 1829 in
Lansing v. Smith, 4 Wend. 9. In that case,
which has always been regarded as a leading one, the Commissioners
of the Land Office in New York granted without valuable
consideration to an upland owner land under water on which he
erected a wharf after filling in the same. Thereafter the
legislature authorized the erection of a mole or pier in the river
for the purpose of constructing a basin for the safety and
protection of canal boats, and this mole or pier entirely
encompassed the wharf on the side of the water, so as to leave no
communication between it and the river except through a sloop lock
at one extremity of the basin. It was held that the loss sustained
by the owner was
damnum absque injuria, that the grant
only conveyed the land described in it by metes and bounds, and,
being in derogation of the rights of the public, nothing would be
implied.
Page 271 U. S. 382
Chancellor Walworth, speaking for the Court of Errors of the
state, said:
"By the common law, the King, as
parens patriae, owned
the soil under all the waters of all navigable rivers or arms of
the sea where the tide regularly ebbs and flows, including the
shore or bank to high water mark. . . . He held these rights not
for his own benefit, but for the benefit of his subjects at large,
who were entitled to the free use of the sea and all tide waters
for the purposes of navigation, fishing, etc., subject to such
regulations and restrictions as the Crown or the Parliament might
prescribe. By Magna Charta and many subsequent statutes, the powers
of the King are limited, and he cannot now deprive his subjects of
these rights by granting the public navigable waters to
individuals. But there can be no doubt of the right of Parliament
in England, or the legislature of this state, to make such grants
when they do not interfere with the vested rights of particular
individuals. The right to navigate the public waters of the state
and to fish therein, and the right to use the public highways, are
all public rights belonging to the people at large. They are not
the private unalienable rights of each individual. Hence, the
legislature, as the representatives of the public, may restrict and
regulate the exercise of those rights in such manner as may be
deemed most beneficial to the public at large, provided they do not
interfere with vested rights which have been granted to
individuals."
In the case of
People v. New York & Staten Island Ferry
Company, 68 N.Y. 71, the Court of Appeals, speaking of the
common law, said, at p. 77:
"But, while the sovereign can make no grant in derogation of the
common right of passage over navigable waters, Parliament may do
so. . . . But a person claiming a special right in a navigable
river or arm of the sea under a grant by Parliament, as, for
example, a right to obstruct it or to interfere in any way with the
public easement,
Page 271 U. S. 383
must show a clear title. It will not be presumed that the
legislature intended to destroy or abridge the public right for
private benefit, and words of doubtful or equivocal import will not
work this consequence. . . . [At p. 78:] The state, in place of the
Crown, holds the title, as trustee of a public trust, but the
legislature may, as the representative of the people, grant the
soil, or confer an exclusive privilege in tidewaters, or authorize
a use inconsistent with the public right, subject to the paramount
control of Congress, through laws passed, in pursuance of the power
to regulate commerce, given by the federal Constitution."
In that case, the question involved the effect of a legislative
grant of lands under water, so far as appears without valuable
consideration, by the land commission of the state in 1818 to one
John Gore on the eastern shore of Staten Island, including the
premises thereafter acquired by the New York & Staten Island
Ferry Company. The grant extended from low water mark into the bay
a distance of 500 feet, to have and to hold to Gore, his heirs and
assigns, as a good and indefeasible estate of inheritance forever,
under a statute authorizing the grant of such lands as the
commissioners should "deem necessary to promote the commerce of the
state." It was held that, as there was nothing to show that it was
intended to restrict the state in the preservation of the
navigation of the river in that 500 feet, the grant to Gore might
be and was restricted by the subsequent statute of 1857 of the
State of New York providing that it should not be lawful to fill in
the land granted with earth or other solid material beyond the
bulkhead line established under that law, or by piers that should
exceed 70 feet in width, with intervening water spaces of at least
100 feet between them. It was therefore decided that the erection
of a clubhouse on the land granted was a purpresture.
It is apparent from these decisions that, under the law of New
York when these cases were decided, whenever
Page 271 U. S. 384
the legislature deemed it to be in the public interest to grant
a deed in fee simple to land under tidal waters and exclude itself
from its exercise as sovereign of the
jus publicum (that
is, the power to preserve and regulate navigation), it might do so,
but that the conclusion that it had thus excluded the
jus
publicum could only be reached upon clear evidence of its
intention and of the public interest in promotion of which it
acted.
What is thus declared as the law of New York in these two cases,
where it was found that the
jus publicum had not been
conveyed, is shown in a number of cases in the Court of Appeals in
which the state and its agency, the city, did part with the
jus
publicum to private owners of land under tidal water, and of
wharfage rights thereon, upon adequate compensation and in
pursuance of a plan of harbor improvement for the public
interest.
In the cases of
Duryea v. The Mayor, 62 N.Y. 592, and
96 N.Y. 477, a deed of land under tidal water by the City of New
York, with the authority of the state, conferred upon the grantees
a fee simple title with all the privileges of an absolute owner,
except as restricted by the covenants and reservations contained in
it. The covenants related to the filling of the streets running
through the lots, which were excepted from the grant. The grantees
had partially filled the water lots, and, while this was being
done, the city, with a sewer, had flowed the land with the contents
of the sewer. The sewer had been placed under a revocable license
of the owner, but, when the license was withdrawn, the city
insisted on continuing to use the lots for sewer discharge, and
this it was held the city could not do.
In the later case, in 1884, the Court of Appeals, speaking of
the deed, said, at p. 497:
"As we have before seen, the deed conferred upon the grantees
therein the title and absolute ownership of the property conveyed,
subject only to be defeated at the option of the grantor for a
breach of the condition subsequent. "
Page 271 U. S. 385
"The claim now made, that there was some right or interest in
the property which still remained in the city notwithstanding its
deed, is opposed to the principles declared in our former decision,
and the express language of the conveyance."
In
Towle v. Remsen, 70 N.Y. 303, 308, the Court of
Appeals, in dealing with the effect of a deed of New York City of
land under tidal waters, said:
"The land under water originally belonged to the Crown of Great
Britain, and passed by the Revolution to the State of New York. The
portion between high and low water mark, known as the tideway, was
granted to the city by the early charters (Dongan Charter,
§§ 3 and 14; Montgomerie Charter, § 37), and the
corporation have an absolute fee in the same (
Nott v.
Thayer, 2 Bosw. 61). It necessarily follows that the city had
a perfect right, when it granted to the devisees of Clarke, to make
the grant of their portion of the land in fee simple absolute. As
to the land outside of the tideway, the city took title under
chapter 115 of the Laws of 1807, with a proviso giving the
preemptive right to the owners of the adjacent land in all grants
made by the corporation of lands under water granted by said Act. .
. . The legislature left it to the city to dispose of the interests
mentioned upon the proviso referred to, but it enacted no condition
that it should not dispose of that which it owned in fee simple
upon such terms as it deemed proper, and in the absence of any such
enactment such a condition cannot be implied."
A deed of this class came before the Court of Appeals in
Langdon v. Mayor, 93 N.Y. 129. The State Commissioners of
the Land Office, under a law of 1807, granted to the city a strip
of land under water in the North River, the westerly line of which
was in the river 400 feet west of the low water mark. The city laid
out an extension of West Street along this strip, parallel with the
river, the
Page 271 U. S. 386
westerly line of the street being about 200 feet out in the
river west of low water mark. In 1810, the city granted to Astor,
the owner of the adjoining uplands, certain lands under water,
including a portion of the strip, the westerly bounds of the grant
being
"the permanent line of West Street, saving and reserving so much
of the same as will be necessary to make West Street in accordance
with the map or plan."
In consideration of the grant, the grantee covenanted to pay
certain perpetual rents, to make such wharves as should be
necessary to make the portion of West Street, within the bounds of
the grant, of the width specified, and forever thereafter to
maintain and keep them in repair. The city covenanted that the
grantee should at all times thereafter have the wharfage, from the
wharf or wharves to be erected on the west end of the premises
granted. Astor constructed West Street across the land granted, in
accordance with his covenant, and maintained the wharf on the
westerly line of said street. Without making compensation to the
plaintiff, who succeeded to his title, the city erected a bulkhead
outshore from such westerly line and filled up the space between it
and the old bulkhead and destroyed the use of the wharf. It was
contended that the city and state could not part with the power to
preserve and regulate navigation in the water between the wharf and
the 200 feet beyond owned by the city. The Court of Appeals held
that the covenant as to the wharf which the city made to Astor in
the deed was a grant of an incorporeal hereditament of wharfage,
which the city or state could not impair; that the city acquired by
its grant from the state the right to fill up the land granted, to
build wharves thereon, and to receive wharfage; that whatever
property rights it thus acquired it could convey to individuals;
that, by its grant to Astor, the city conveyed not only the land,
excepting the part covered by West Street, but also the right of
wharfage; that an
Page 271 U. S. 387
easement (
i.e., a perpetual right of free access to the
wharf across West Street over the land of the city) therein passed
by necessary implication; that the city had the right to grant such
easement; that the legislature could not by the Act in question
authorize a destruction or impairment of this easement without
compensation to the owner, and that therefore the action for
damages was maintainable.
In the course of his opinion for the court, Judge Earl, speaking
of the power of the city conferred upon it by the state, said, at
p. 144:
"Here, taking the language of the charters and grants, the
course of legislation, and all the statutes
in pari
materia, the situation of the lands granted and the use to
which many portions of them had, with the knowledge and consent of
the legislature, been from time to time devoted, it is very clear
that the lands under water around the city were conveyed to it in
fee, to enable it to fill them up as the interest of the city might
require, and to regulate and control the wharves and wharfage. We
think it equally clear that whatever title and property rights the
city thus obtained, it could transfer and convey to individuals.
Having the power to extend the
ripa around the city, and
thus make dry land, it could authorize any individual to do it.
Whatever wharves and docks it could build, it could authorize
individuals to build, and whatever wharfage it could take, it could
authorize individuals to take. Its dominion over the lands under
water, certainly for the purposes indicated in the preamble
contained in § 15 above cited, was complete."
Speaking of the wharfage granted the judge said, at p. 152:
"An easement for access to the wharf over the adjacent land of
the city under water passed by necessary implication. Without the
easement, the wharf would be of no
Page 271 U. S. 388
use, there could be no wharfage, and the grant as to the wharf
and wharfage would be futile. The grant was made for an adequate
valuable consideration. It was not made solely or primarily for the
benefit of the grantee, but primarily for the benefit of the city,
in pursuance of a policy for improving its harbor and furnishing
its treasury. Under such circumstances, there is no rule of
construction which can confine the grant to the metes and bounds
mentioned in the deed. If the city had owned this wharf and granted
it, the right to wharfage and an easement for access to the wharf
over the adjacent land of the city under water would have passed by
necessary implication as incidents and appurtenances of the thing
granted. . . . So it would seem that a grant of the right to build
and forever maintain a wharf upon the land of the city would, upon
the same principle, carry with it the right to take the wharfage
and have access to the wharf. In addition to the right to build and
maintain the wharf, however, here there was on the part of the city
an express grant of the wharfage, and it must have been the
intention of the parties that the grantee should have open water in
front of his wharf for the accommodation of vessels that the
wharfage which was granted to him might be earned."
The necessary effect of the
Langdon case, which has
always been a leading authority in the State of New York, is that a
grant upon a valuable consideration of the easement of wharfage
related to land under water conveyed by the city by authority of
the state, for the purpose of promoting commerce and the harbor of
the city, taken away from the city and state the power to regulate
navigation in any way which would interfere with or obstruct the
grant, and that, if the city desired, in the interest of
navigation, to obstruct such easement, it must acquire it by
condemnation. If it may do this, it follows necessarily that it
may, by an absolute deed of land under
Page 271 U. S. 389
water, with the right of the grantee to fill it, part with its
own power to regulate the navigation of water over this land which
would interfere with its ownership and enjoyment by the
grantee.
The
Langdon case was approved and followed in the case
of
Williams v. City of New York, 105 N.Y. 419. In that
case, the city, under New York laws of 1813 and 1857, was held to
have received authority from the state to fill in the east side of
the Hudson River from an existing bulkhead to 13th Avenue with a
new bulkhead there. The city made a grant to a private person of
the land under water some 80 feet, with a requirement that he fill
it in and build the new bulkhead with wharfage on the outer
bulkhead. It was held that he took a fee, that he had an easement
for the approach of vessels in its front, and that the property
thus granted him could not be taken by the city for the public use
without compensation. The court said in that case:
"The authority thus given being commensurate with the municipal
limits, involved a grant of so much of the land of the state under
water as those wharves would occupy if the city's choice of
location required such appropriation. This right was tantamount to
an ownership. It embraced the entire beneficial interest, and was
inconsistent with any title remaining in the state. The wharf, when
built, completely occupied the land under water, and might be
built, if need be, of stone and earth. All use for the floating of
vessels disappeared so far as it occupied the water. The new and
substituted use created by the city or its grantees belonged wholly
to them, for the entire benefit, in the form of shippage, wharfage,
and cranage, was given to them. There was never any restraint put
upon this general grant, and the ownership involved, where the
plans carried the wharves on to the state's land in the stream,
except the limitation of exterior lines beyond which the authority
should not go,
Page 271 U. S. 390
or that imposed by general plans agreed upon by both parties. .
. ."
". . . So that, when the state granted to the city wharf rights
which might extend into the deep water covering its own land, it
granted two things: property in the land covered by the wharf and
occupied by it and an easement for approach of vessels in its
front. That easement the state, by its own sole action, could not
take away or destroy without awarding adequate compensation."
The same principle was announced in
Mayor v.Law, 125
N.Y. 380.
In
People v. Steeplechase Park Co., 218 N.Y. 459, it
was held that, where the state, through its land commissioners,
unqualifiedly granted to defendants lands in navigable waters
between high and low water marks, the exclusive use and right of
possession vested in the grantee. Hogan, Cardozo, and Seabury,
Judges, dissented. The ruling went to the extent of deciding that
fences, barriers, platforms, pavilions, and other structures of a
private amusement park constructed by the grantee on lands under
navigable water between high and low water mark, although an
interference with the public use of and access to such lands, could
not be enjoined where the grant of such lands was unqualified.
In that case at pp. 479-480, the court said:
"During all our history, the legislature and the courts have
recognized that the public interest may require, or at least
justify, a limited restriction of the boundaries of navigable
waters. The public interest may require the building of docks and
piers to facilitate approach to the channel of such navigable
waters. The beneficial enjoyment of land adjoining the channel of
public waters may require, or at least justify, the conveyance of
lands below high water on which to erect buildings. As in England
the Crown and Parliament can without limitation convey land under
public waters, so in this state land under
Page 271 U. S. 391
water below high water mark can be conveyed by the legislature,
or in accordance with constitutional and legislative direction.
Where the state has conveyed lands without restriction, intending
to grant a fee therein for beneficial enjoyment, the title of the
grantee, except as against the rights of riparian or littoral
owners is absolute, and unless the grant is attacked for some
reason recognized as a ground for attack by the courts, or the use
thereof is prevented by the federal government, there is no
authority for an injunction against its legitimate use."
The
Duryea and the
Langdon cases rest on the
delegation by the state to the city of the state's sovereign right
to control navigation or the
jus publicum in the land to
be disposed of by the city to private owners in pursuit of the
promotion of filling land under water to a
ripa or
exterior line, and of the construction of docks to make a harbor.
The rights of such private owners come not from riparian rights, or
gratuitous statutory grants. They come from a deed absolute of the
lots conveyed for a money consideration. The Steeplechase Park case
was a close case, as shown by the dissents, and was not nearly so
strong a one for the application of the principle above stated as
the case at bar, or the
Duryea and
Langdon
cases.
If we are right in our conclusion as to the effect of these
deeds under the law of New York at the time of their execution,
then there can be no doubt that the laws of 1857 and 1871, as
enforced in this case, impair the contract made by the city with
the grantees of these deeds.
Cases cited as contrary to the New York City water lot decisions
just considered must be examined to see whether they involve grants
of lots under tidewater by deed absolute in fee simple from the
city or state, in consideration of money paid and in promotion of
harbor plans or other public purposes.
Knickerbocker Ice Co. v. Forty-Second, etc., R. Co.,
176 N.Y. 408, is relied on to show a conclusion adverse to the
inferences
Page 271 U. S. 392
we have drawn as to the New York law. There, the Court of
Appeals sustained an order denying an injunction to restrain the
city from effecting an extension of Forty-Third Street into the
Hudson River, sought by one who by deed of the city was given the
right to wharfage at the end of Forty-Third Street. In the same
deed, land under water on each side of the street was conveyed to
the grantee in fee simple. The court held that the street was held
in trust by the city for the public use, and that the grant of
wharfage at the end of the street did not carry the fee in the
street, but only an easement of wharfage at the end of the street,
as the city might extend it into the river, and that, by virtue of
covenant in the deed, the grantee, if he would enjoy the wharfage,
must erect a new wharf or pier at the new end of the extended
street. The grant was not of the fee, but only of an ambulatory
easement of wharfage on any extension of the street. But the city
was nevertheless thereafter required to condemn this grant of the
easement.
American Ice Co. v. City of New York, 193 N.Y.
673, and 217 N.Y. 402.
The case of
Sage v. Mayor, 154 N.Y. 61, 79, does not
conflict in any way with the
Langdon and other cases. That
only concerned the right of a riparian owner in the tideway which
the city owned and deeded to another. It was held that the riparian
owner had no more right to complain of the city's disposition of
the tideway for the public interest by deed than had the owner of a
United States patent reaching to high water mark to complain of the
state's disposition of the tideway in Oregon in
Shively v.
Bowlby, supra.
The cases of
Brookhaven v. Smith, 188 N.Y. 74, and
Barnes v. Midiand R. Co. Terminal Co., 193 N.Y. 378,
concern conflicting rights of riparian owners and of persons with
limited grants to put out a wharf without any fees simple title,
and seem to us to have no bearing upon the question here.
Page 271 U. S. 393
In
Lewis Blue Point Co. v. Briggs, 198 N.Y. 287,
grantees under deeds made before 1700 conveying the exclusive right
of fishing leased for 10 years the right to plant and cultivate
oysters in the navigable waters of the Great South Bay, Long
Island, the lessees were held subject to an Act of Congress
authorizing and directing the dredging of a channel 2,000 feet long
and 200 feet wide through their oyster beds without claim for
compensation. It was held that they had derived no more right in
the fishery than the King had in his private ownership, and he
could not convey the right to restrict navigation which he held in
trust for the public. The colonial grant, therefore, which was not
like a grant from the state, did not exclude the sovereign right to
provide for navigation. Moreover, it was a federal right which the
owners were opposing, and, of course, they had to yield.
Tempel
v. United States, 248 U. S. 121;
Lewis Blue Point Oyster Co. v. Briggs, 229 U. S.
82.
It is urged, against our view of what these deeds conveyed of
the sovereign power of the state and the ownership of the city at
the time of their execution, that it is opposed to the judgment of
this Court in
Illinois Central R. Co. v. Illinois,
146 U. S. 387, in
which the validity of a grant by the Illinois Legislature to the
Illinois Central Railroad Company of more than 1,000 acres in the
harbor of Chicago in Lake Michigan was under consideration. It was
more than three times the area of the outer harbor, and not only
included all that harbor, but embraced the adjoining submerged
lands which would in all probability be thereafter included in the
harbor. It was held that it was not conceivable that a legislature
could divest the state of this absolutely in the interest of a
private corporation, that it was a gross perversion of the trust
over the property under which it was held, an abdication of
sovereign governmental power, and that a grant of such right was
invalid. The limitations on the
Page 271 U. S. 394
doctrine were stated by Mr. Justice Field, who delivered the
opinion, as follows at
146 U. S.
452:
"The interest of the people in the navigation of the waters and
in commerce over them may be improved in many instances by the
erection of wharves, docks, and piers therein, for which purpose
the state may grant parcels of the submerged lands; and, so long as
their disposition is made for such purpose, no valid objections can
be made to the grants. It is grants of parcels of lands under
navigable waters that may afford foundation for wharves, piers,
docks and other structures in aid of commerce, and grants of
parcels which, being occupied, do not substantially impair the
public interest in the lands and waters remaining, that are chiefly
considered and sustained in the adjudged cases as a valid exercise
of legislative power, consistently with the trust to the public
upon which such lands are held by the state. But that is a very
different doctrine from the one which would sanction the abdication
of the general control of the state over lands under the navigable
waters of an entire harbor or bay, or of a sea or lake. Such
abdication is not consistent with the exercise of that trust which
requires the government of the state to preserve such waters for
the use of the public. The trust devolving upon the state for the
public, and which can only be discharged by the management and
control of property in which the public has an interest cannot be
relinquished by a transfer of the property. The control of the
state for the purposes of the trust can never be lost, except as to
such parcels as are used in promoting the interests of the public
therein, or can be disposed of without any substantial impairment
of the public interest in the lands and waters remaining. It is
only by observing the distinction between a grant of such parcels
for the improvement of the public interest, or which when occupied
do not substantially impair the public interest in the lands and
waters remaining, and a grant
Page 271 U. S. 395
of the whole property in which the public is interested, that
the language of the adjudged cases can be reconciled."
That case arose in the Circuit Court of the United States, and
the conclusion reached was necessarily a statement of Illinois law,
but the general principle and the exception have been recognized
the country over, and have been approved in several cases in the
State of New York.
In
Coxe v. State, 144 N.Y. 396, a company was created
to reclaim and drain all or any portion of the wet or overflowed
lands and tidewater marshes on or adjacent to Staten Island and
Long Island, except such portions of the same as were included
within the corporate limits of any city, upon the deposit of
$25,000 and the payment to the state of a sum to be fixed by a
commission after doing the work. This was a suit to recover a
$25,000 deposit because the Attorney General had decided the law to
be unconstitutional. The court followed the
Illinois Central
Railroad case, and held the law invalid, but said:
"For every purpose which may be useful, convenient, or necessary
to the public, the state has the unquestionable right to make
grants in fee or conditionally for the beneficial use of the
grantee, or to promote commerce according to their terms. The
extensive grant to the City of New York of the lands under water
below the shoreline around Manhattan Island clearly comes within
this principle, since it was a grant to a municipality,
constituting a political division of the state for the promotion of
the commercial prosperity of the city, and consequently of the
people of the state."
Citing
Langdon v. Mayor, 93 N.Y. 129.
The opinion says:
"The title which the state holds and the power of disposition is
an incident and part of its sovereignty that cannot be surrendered,
alienated, or delegated except for some public purpose, or some
reasonable use which can fairly be said to be for the public
benefit. "
Page 271 U. S. 396
The same rule and exception are laid down in
Long Sault
Development Co. v. Kennedy, 212 N.Y. 1, where the Legislature
of New York attempted to give complete control of the navigation of
the St.Lawrence River in the region of Long Sault Rapids to a
private corporation and abdicate its sovereign function. The court
held the grant invalid, but said in stating the exception:
"The power of the legislature to grant land under navigable
waters to private persons or corporations for beneficial enjoyment
has been exercised too long and has been affirmed by this court too
often to be open to serious question at this late day."
citing
Lansing v. Smith, supra; People v. New York &
Staten Island Ferry Company, supra, and Langdon v. Mayor,
supra, and added: " . . . The contemplated use, however, must
be reasonable and one which can fairly be said to be for the public
benefit or not injurious to the public."
There is an interesting discussion of the same exception by
Chief Justice Bartlett in
People v. Steeplechase Park,
supra at p. 482, in which he cites
United States v.
Mission Rock Co., 189 U. S. 391,
189 U. S. 406,
and emphasizes the distinction between the
Illinois
Central, the
Coxe, and
Long Sault cases and
grants like those we are considering. It is clear that the ruling
in those cases has no application here.
But it is said, and the court below held, that the fee simple
granted by the deeds in this case did not exclude the right of the
city to regulate and preserve navigation over the waters covering
the land conveyed until they were filled, and that this
distinguishes the
Duryea, Langdon, and other cases, in
which the filling had taken place, from the present one.
The suggestion that rights of ownership in lands under water,
conveyed by the city by such a deed in fee simple,
Page 271 U. S. 397
are restricted, and the city's control of navigation of the
water over them remains complete until they are filled, cannot be
accepted without qualification in respect to grants which are
intended to part both with the
jus publicum and
jus
privatum, as we have found these deeds to do. The suggestion
does not find support in the case of
First Construction Co. of
Brooklyn v. State, 221 N.Y. 295, cited to sustain it. In that
case, Beard was an upland owner whose land bordered on Gowanus Bay.
The legislature in three Acts granted to a private person the right
to build wharves and fill in lands in a salt meadow marsh and mud
flats partially submerged at high tides. The court (Hiscock, C.J.),
in stating the case, said:
"It may be stated generally that none of them (the legislative
Acts) did more than grant to Beard and others the privilege to
build wharves, etc., and fill in lands; none of them purported in
terms to grant and convey the title to lands under water included
with him the area now appropriated, and none of them was passed by
a two-thirds vote."
It was held that no title could pass, because it was a gratuity,
and no grant could be made under the Constitution without a
two-thirds vote of the legislature, which was not here, and that it
was only a privilege or franchise, which could not ripen into a
title until the land was filled. It does not bear on the case here
except in the necessary inference from the treatment of the matter
in the opinion that, if title had passed, filling was not necessary
to vest full fee simple in the grantee.
Of course, we do not intend to say that, under such deeds as
these, as long as water connected with the river remains over the
land conveyed and to be filled, navigation may not go on and boats
may not ply over it, and that, incident to such use, occasional
mooring may not take place. But it is a very different thing to say
that
Page 271 U. S. 398
the city, which has parted with the
jus publicum and
jus privatum over such water lots, remains in unrestricted
control of navigation, with the right to dredge them, or
appropriate the water over them as a slip or regular mooring place
for its adjoining piers, in the doing of a great business, largely
excluding plaintiffs and all others from use of the water over
those lots for the constant private use of the city's tenants for
its profit. This distinction and conclusion is borne out by the
decision of the Court of Appeals in
In re Mayor of The
City, 193 N.Y. 503, where the court was dealing with the
question of the elements of value of a pier right in the Hudson
River, granted by the city to an individual in a deed with
covenants quite like those in this case when the pier adjoined an
unfilled water lot of the city. The court said:
"The deed of the pier right cannot be construed as conferring
any right of access from or over the lands which the city might at
its pleasure cause to be filled in. It is obvious, of course, that,
so long as this territory was not filled in it, served the purposes
of access to the pier, but that was merely a privilege by
sufferance, and not a legal right."
The evidence shows that two slips between the city piers at
Thirty-Ninth Street and Fortieth Street and those between Fortieth
Street and Forty-First Street are usually blocked with coal barges,
with railroad floats carrying boxcars on them, with cattle boats
using a runway for cattle at the side of the piers, and all are
being moored in the slips for the use and benefit of the lessees
and other tenants of the city for the pecuniary profit of the city.
This and the dredging of the soil of the plaintiffs certainly are
more than a privilege of sufferance.
Whittaker v. Burhans,
62 Barb. 237;
Wall v. Pittsburgh Harbor Co., 152 Pa.
427.
The wharfage rights of the city at the piers in Thirty-Ninth,
Fortieth, and Forty-First Streets as far at 13th Avenue under the
deeds before us cover only the ends of those piers, and not
Page 271 U. S. 399
their sides. This is clear, because the grantees of the deeds
were vested with the wharfage on 13th Avenue along the river
extending from Thirty-Ninth Street to Forty-First Street, except
that at the ends of the cross Streets. In this state of the case,
the rights of the city, having parted with the sovereign regulation
of navigation in the water over these lots, are not different from
those of the owner of the upland, who builds out his pier to deep
water. His right is limited to the front or end of the pier for his
private use.
Judge Cullen, in
Jenks v. Miller, 14 App.Div. 480,
points out that:
"though the owner of adjacent upland has the right of access to
the river and also the right to construct a proper pier therein, he
has no easement or interest in the lands under water in front of
the adjacent proprietors. The riparian right of access, so far as
it is a proper right incident to the ownership of the upland, is
strictly a right of access by the front."
The same principle is approved in
Consumers' Coal & Ice
Co. v. City of New York, 181 App.Div. 388, 394, where it said
that privately owned land under public waters is subject to the
navigation of vessels over it, but cannot be appropriated by others
to enlarge the berths at private piers.
Compare Keyport
Steamboat Co. v. Transportation Co., 18 N.J.Eq. 511, 515;
United States v. Bain, 24 Fed.Cas. 940, No. 14,496.
Our conclusions are that Appleby and Latou were vested with the
fee simple title in the lots conveyed, and, with a grant of the
wharfage at the ends of the lots on the river, that, with respect
to the water over those lots and the wharfage, the state and the
city had parted with the
jus publicum and the
jus
privatum, and that the city can only be revested with that by
a condemnation of the rights granted.
What, then, is the effect upon the rights of the parties of the
fact that the grantees only filled the part of lots
Page 271 U. S. 400
conveyed east of 12th Avenue? The plaintiffs are not in default
in this, because there was no covenant on their part to fill.
Duryea v. Mayor, supra at 596; 96 N.Y. 477, 496;
Mayor
v.Law, supra at 391. The filling was left to their
convenience. They were not in default with reference to filling in
the streets and avenues, because their covenant to do so was only
on condition that the city should require it, and only when it did
so. The reason for their delay in filling the remainder of the lot
beyond 12th Avenue was doubtless due to the passage of the Act of
1857 and of the Act of 1871, and their reasonable expectation that
the city would condemn their rights -- an expectation that was
confirmed by the condemnation proceeding which was directed to be
begun in 1890 by the Dock Commission, and was begun in 1894, and
remained without prosecution, and operated as a dead hand upon this
property for 20 years, until 1914, when the city discontinued it.
Thereupon this suit was promptly brought.
The rights of the plaintiff with reference to the use of the
water over their lots lying between the bulkhead line and 12th
Avenue are not affected by the order of the Secretary of War. The
evidence shows that, for 100 feet or more inside the line, the
water over these lots is made part of the slip and city mooring
place for the city's pier; that, in order to adapt it to such a
purpose, the soil in the lots is being constantly dredged, the
dredging having increased the depth of the water from 3 feet to 16
and 20 feet. This has been done by the city on the assumption that,
because it is water connected with the river, the city may improve
its navigation. As the city has parted with the
jus
publicum in respect to these lots, it may not exercise this
power, and must be content with sailing over it with boats as it
finds it. The dredging of the mud in those lots to a depth of 15
feet is a trespass upon the plaintiffs' rights. They have a right,
at
Page 271 U. S. 401
their convenience, to fill both lots from the bulkhead line
easterly to 12th Avenue and beyond. And we know from a record in a
related case, argued with this and to be decided this day, that
they have applied for permission to fill the lots and are pressing
their right to do so. So, too, the use of the water over these lots
inside the bulkhead line for mooring places, berths, or slips by
the city and its tenants, as we have shown, violates the rights of
the plaintiffs. They are entitled to an injunction against
both.
The order of the Secretary of War of 1890 fixing the bulkhead
line 150 feet west of 12th Avenue, and allowing pier extensions far
beyond 13th Avenue, to 700 feet from the bulkhead line, does not
take away the right of the plaintiffs to object to the city's
dredging their lots, or to its using the water over their lots for
what is in effect an exclusive slip and mooring place. The order
did not restore to the city the power as against these plaintiffs
to regulate navigation over their lots, and so did not make the Act
of 1857 and the Act of 1871 with respect to the spacing of 100 feet
between piers and for mooring places adjoining the piers effective
to defeat those deeds. The action of the city in making these deeds
and covenants was, of course, subject to the dominant right of the
government of the United States to control navigation; but the
exercise of that dominant right did not revest in the city a
control and proprietary right which it had parted with by solemn
deed and covenant to these plaintiffs.
The only just and possible result of the Secretary of War's
order is that the enjoyment by the plaintiffs of their rights under
the deeds is qualified to the extent of a compliance with it
without conferring any affirmative power upon the city to detract
from the rights which it had granted. The plaintiffs are prevented
from solidly filling between the buikhead line and 13th Avenue, but
the order expressly authorizes the substitution for such
Page 271 U. S. 402
filling of the construction of piers on piling driven into the
lots of the plaintiffs. To whom is given the right to build piers
over these lots? The government does not attempt to take it away
from the owners of the lots. It does not attempt to vest it in the
city. It could not do so if it would. The right must reside in
those who have the ownership of the land under the water and who
until the Secretary had made his order were entitled by their
grants to use the solid filling up to the line of 13th Avenue,
without reference to the bulkhead lines or to the 100-feet spacing
between the piers under the Acts of 1857 or 1871.
The lots have been bought and paid for, subject only to control
by the general government in the interest of navigation. The
general government, through its agent, says it does not require
open water for navigation, but is sufficiently satisfied by piers
on piles extending over the water. The city has by deed granted to
the Applebys the wharfage and cranage rights upon these lots. What
is there to prevent the Applebys, by the construction of piers on
piles over their lots in conformity to the Secretary of War's
order, from enjoying the profit from that wharfage?
It thus is seen that the limitations on the right of the city to
use the water over the lots outshore from the bulkhead line are no
different from what they are inshore of the bulkhead line. The
right of the city in respect to the use of the water over the lots
beyond the bulkhead line is, as is said in
In Re Mayor of the
City, supra, already quoted, merely a privilege by sufferance,
and not a legal right, and lasts only until these lots may be
covered by piers on piles, as allowed by the Secretary of War.
The plaintiffs are therefore entitled also to an injunction to
prevent the dredging of their lots by the city from the bulkhead
line to 13th Avenue, and also to prevent the continued use of the
water over their lots in that same
Page 271 U. S. 403
extent as a slip or permanent mooring place for the adjoining
piers of the city. They are also entitled to a specific injunction
against the overhanging platform which was put out by the city for
its tenants on the north side of the Thirty-Ninth Street pier.
The application of the Acts of 1857 and 1871 by the courts of
New York would reduce the rights which were intended to be conveyed
in these deeds to practically nothing, and would leave the grantees
only the privilege of paying taxes for something quite
unsubstantial. The qualification of those rights by the order of
the Secretary of War still leaves value in the deeds, if the Acts
of 1857 and 1871 are invalid, as we hold them to be when applied as
they have been in this case.
The judgment of the Supreme Court of New York is reversed for
further proceedings not inconsistent with this opinion.
Reversed.
