In re the City of New York , 173 N.Y.S. 320 ( 1918 )

Laughlin, J.:

Two awards were made to the coal company, one for $21,654 for seventy-two and eighteen one-hundredths feet of wharfage and bulkhead rights appurtenant to the bulkhead on the outer line of South street beginning at a point forty-eight feet west of the westerly line of Clinton street prolonged and extending westerly therefrom; and $20,000 for damages to its coal plant “ as a whole,” which the commissioners deemed to embrace the use of the premises across South street from the bulkhead as a coal yard in connection with the bulkhead rights. The other appellants owned in different proportions the other three parcels, consisting of Pier Old No. 49, East river, and wharfage and bulkhead rights appurtenant to twenty-nine and three-tenths feet of bulkhead adjoining said pier on the west and to thirty-one and forty-six one-hundredths feet adjoining it on the east, the value- of which was estimated as a whole and a single award of $250,000 was made therefor.

The learned court at Special Term was of opinion that the coal company was not entitled to any award for damages to its plant and that the awards to it and to the other appellants for bulkhead rights were not confined to bulkhead rights as stated in the report, but were erroneously made for interests in the street as well, and on those grounds refused to confirm the report and remitted the matter to new commissioners. I am of opinion that the learned court was right in holding that the coal company was not entitled to an award for damages to its plant but was in error in holding that the awards for bulkhead rights embraced awards for interests in the street. This error was doubtless owing to general statements in the opinion of the commissioners, but when their opinion is construed in the light of the petition and of the evidence and of their report, it is quite evident that they made the award for the bulkhead rights, which embraces wharfage and cranage rights only, upon the proper theory. The petition described the bulkhead rights sought to be acquired, not by metes and bounds embracing any part of the street, but by a single line a specified number of feet in length along the outer or southerly line of South street, and the evidence'was directed to the value of the bulkhead rights only without consideration of any right or interest in the street. The bulkhead rights of the coal company are only a few hundred feet westerly of the pier. All of the awards therefor are for property in the same immediate vicinity. With respect to the bulkhead rights an expert for the coal company testified that the wharfage and cranage rights on that part of the bulkhead were worth $400 per lineal foot, but his testimony indicates that he included in his estimate the right of the company to use these rights itself in connection with its plant. The expert for the city testified that they were worth $200 per lineal foot, and he excluded from consideration any right on the part of the company to use these rights itself in connection with its plant. The award shows that the commissioners allowed $300 per lineal foot, and from the fact that they made a separate award for damages to the plant as a whole, it is to be inferred that in determining the amount of the award for the bulkhead rights they did not take into consideration any right to use the same in connection with the plant. The expert for the other appellants testified that their bulkhead rights were worth $500 per lineal foot, and the expert for the city admitted that those bulkhead rights were worth $250 per lineal foot. It appears by the briefs that the coal company is satisfied with the award for the bulkhead rights. A separate award having been made therefor and on the proper theory and there being evidence to sustain it, the court should have confirmed it.

South street was seventy feet in width. It was evidently constructed pursuant to a grant from the city to one Rutgers on the 1st day of May, 1817, of land under the waters of East river. The outer line of the grant, as shown by the description and by a map annexed to the grant, was on the northerly or inner line of South street. The grantee covenanted to construct a “ good and sufficient firm wharf or street ” being the new street called South street for its entire width of seventy feet outside the premises conveyed and forever thereafter to maintain it as his own cost, and he agreed that the street as thus constructed should forever thereafter continue to be and remain a public street or highway the same as other public wharves or streets, and in consideration of his covenants the city agreed that he and his heirs or assigns should forever thereafter “ fully have, enjoy, take and hold to his and their own proper use all manner of wharfage, cranage, advantages and emoluments, growing or accruing by or from that part of the said wharf or street called South street which lies opposite to the hereby granted premises and fronting on the East River,” excepting such part thereof as might thereafter be appropriated for a public slip or basin. The wharfage and cranage rights are incorporeal rights, under which the owner has the exclusive right to collect the established rate of wharfage and cranage of° vessels loading or unloading at the bulkhead. (Kingsland v. Mayor, etc., 110 N. Y. 569; Langdon v. Mayor, 133 id. 628.) The coal company acquired the premises on the inner side of South street opposite the bulkhead, and in 1906 erected thereon coal pockets fifty feet in height with driveways on either side, which together with an office and stable substantially covered the premises. It erected at about the same time a movable house or structure on six railroad wheels on the street at the bulkhead, which could be but was not run on tracks, and on it placed a steam shovel or open grab buckets on an endless chain and a large boiler and forty-five horse power engine to operate the shovel. By these appliances coal was conveyed from boats moored at the bulkhead to a hopper on said house from which it was dropped into carts underneath and was then transported across the street and dumped into like hoppers on the company’s plant where it was elevated into the coal p.ockets by like endless chain conveyors. It appears that on the 18th of June, 1891, the board of docks authorized the erection of a derrick mast on the bulkhead to be maintained during the pleasure of the board. It does not appear whether or not such a mast was erected, but on the 9th of September, 1905, the board, by resolution, authorized the substitution of a new portable engine for the old hoister, which it is recited was then on the bulkhead, to be maintained during the pleasure of the commissioners. These permits were not revoked other than by the ouster of the company from the use of the portable house on the 18th of June, 1914; but that was after the city had acquired title in this proceeding on the fifth of the same month.

The city contends that the permits were invalid and that the house was a nuisance. The contention is made on the theory that South street was a public street and not a marginal street or wharf and that the jurisdiction over the street was vested in the president of the borough and the board of aldermen and that the jurisdiction of the commissioner of docks was confined to the wharf part of a widened exterior street or of a new exterior street, which would be marginal wharfs. In my opinion that contention is sound. The dock department through the commissioner of docks and the dock-masters was authorized to regulate the use of the bulkhead rights; but that power was confined to regulating the use of the wharves by vessels receiving and discharging cargoes thereat and to fixing wharfage rates. (Greater N. Y. Charter [Laws of 1901, chap. 466], §§ 867, 825, as amd. by Laws of 1902, chap. 609. See, also, Id. § 818, as amd. by Laws of 1904, chap. 741; Id. § 833.) The condemnation commissioners recognized that the company had no greater rights than any other abutting owner, but they were of opinion that since the wharfage rights were used in connection with the plant across the street they were used in common with the plant and that the company was entitled to an award for damages to the plant. In making the award they attempted to follow Matter of City of New York [Erie Railroad Co.] (193 N. Y. 117; 214 id. 387). In that case, however, the railroad had leased a bulkhead and premises across Thirteenth avenue therefrom for a freight yard from the same owner and on the institution of the condemnation proceeding had released to its landlord all claims to an award for the wharfage or bulkhead rights. The railroad company had, however, before the condemnation proceedings were instituted, erected and maintained a platform and floating bridge attached to the bulkhead under a revocation permit from the city and had constructed three tracks across the avenue under a like permit by which the structures at the water front were connected with the freight yard, and it had equipped its freight yard by laying tracks and the erection of structures thereon and otherwise, for use in connection therewith, all of which had become practically useless by the appropriation of the bulkhead rights. The permit for the construction and use of the tracks across the avenue was lawfully granted and had not been revoked. On that ground the Court of Appeals held that the award should be made for the bulkhead rights and damages to the plant across the avenue therefrom in so far as they were used together' as one plant, on the theory that they constituted a single plant, the award, however, to be divided according to the respective rights of the parties thereto. The decision of the Court of Appeals in that case does not sustain the right of the coal company to an award for damages to its plant, for here there was no physical connection between the bulkhead and the property across the street duly authorized by the city, as in that case.

Counsel for the city further contends that the commissioners have allowed the coal company for damages to the movable structure and appurtenances in the street. Evidence with respect to the value thereof was received, but it is evident that if there was any award therefor, it is included in the award for the damages to the plant, and in no manner affects the award for the bulkhead rights. I am of opinion, therefore, that the learned Special Term was right in holding that the coal company was not entitled to an award for damages to its plant, but should have confirmed the award to it for bulkhead rights, for while the evidence with respect thereto is not very satisfactory, the case is one of great hardship to the coal company which has expended a very large amount of money in so equipping its plant in the expectation that it would be permitted to continue to enjoy the use thereof in connection with the bulkhead rights; and there is much force in the contention that the city has not exercised its power of eminent domain in the case at bar in good faith towards the coal company, since it appears that prior to instituting the condemnation proceeding it had leased most of the bulkhead rights sought to be acquired in this proceeding to the New York, New Haven and Hartford Railroad Company for a period óf ten years with the privilege of two renewals of a like period each, and the lessee had agreed to pay the cost and expenses of acquiring'this property either by purchase or condemnation, which is an additional reason why the court should not be technical in reviewing the weight of the evidence with respect to the amount of the award for bulkhead rights. The observations already made meet all arguments to the effect that the commissioners erroneously considered the extent of the bulkhead rights. .

The city further contends that the commissioners erred in refusing to specify in answer to its request evidently made after the preliminary awards were made, whether they had made an award for the pier as it existed of the width of 35.1 feet at the inner line and 35.2 at the outer line and of the length of 325 feet on the southerly line and 326.4 feet on the northerly line, or in accordance with the only outstanding permits for the construction of the pier as shown by the records, which were for a pier 30 feet in width and 313 feet in length. It appears that the pier has remained of its present width and length since 1860. In the petition the pier was described as of its present width and length and it was stated generally that the city was desirous of acquiring all rights in and to the same not already owned by it. The commissioners state in their report that they considered the outstanding permits and made the awards accordingly. I think the fair construction of their report is that they did not consider the additional length and width of the pier; but I am of opinion that the owners were entitled to an award for the pier as it existed and has been used by them and their predecessors for a period of upwards of fifty years. The city was authorized to permit the widening and lengthening of the pier and having acquiesced in the improvement in that regard for such a length of time it should not be heard to say in this condemnation proceeding that only the part of the pier for the construction of which permits were shown, constituted the lawful structure. Moreover, the city’s expert considered that the additional width added no value to the pier as an unshedded pier, and there is no evidence other than may be inferred from that testimony that it added any value to it as a shedded pier or with respect to the amount thereof.

The main contention of the city on the appeal with respect to the pier and the adjacent bulkhead rights is that the award was made on the erroneous theory that it was a shedded pier. It appears, however, that it was a shedded pier, and that the permit for shedding it, which concededly was granted on the 24th of December, 1879, had not been revoked. It is recited in the permit that it was granted during the pleasure of the board. It is claimed; however, that the permit was duly revoked pursuant to the provisions of section 844 of the charter, which provided that such a permit shall not be revoked without the consent in writing of the mayor and of the commissioners of the sinking fund after the licensee shall have been duly heard, and which declared all sheds theretofore lawfully erected to be lawful structures. The only notice of a hearing with respect to the revocation of the permit was to the Central Vermont Railroad Company, a foreign corporation, the original licensee- of the permit, which was the lessee of the premises at the time, whose lease thereof had long before expired, so that it had no interest therein. The notice was not served on any officer or agent of the company, but on one Hasbrouck, who had been designated by it under our statute ^* for the service of process on the corporation in this State. Manifestly that notice was insufficient, even as against the original lessee; but the city authorities were well aware of the fact that these appellants were in possession of the pier at the time and had long been in possession thereof claiming and exercising the right to maintain the shed thereon, and were the only parties who were directly interested, and yet no notice was given to them. No one appeared on the hearing with respect to the revocation, but in form the permit was revoked in 1913. It is quite clear, I think, that that attempted revocation was a nullity. The structure having been erected under a lawful permit and having been declared by the Legislature to be a lawful structure and the permit being subject to revocation only, if at all, after notice and a hearing, the commissioners were right' in making the award on the theory that the pier was a shedded pier. That the authority to revoke was exercised arbitrarily and solely with a view to reducing the award to be made in the condemnation proceeding is shown by the fact that the pier was thereafter leased to the railroad company as a shedded pier. The authority to revoke could only be exercised in any event when the public interest required it. The only real question is whether the award should have been made on the theory that the permit was revocable or on the theory that it was irrevocable. That is a question that perhaps has not been finally authoritatively decided with respect to such a permit as this, which contained no condition such as that the holder in the event of condemnation should claim no award on account of the permit but merely the recital that it was subject to the pleasure of the commissioner. (See Matter of City of New York [Piers Old Nos. 19 & 20], 117 App. Div. 553; Matter of City of New York [Pier Old No. 15], 95 id. 501; 113 id. 903; affd., 185 N. Y. 607; Matter of City of New York [Piers Old Nos. 16 & 17], 138 App. Div. 186; affd., 199 N. Y. 570; Matter of City of New York [Pier Old No. 11, East River], 124 App. Div. 465; affd., 192 N. Y. 539; Kingsland v. Mayor, etc., 45 Hun, 198; affd., 110 N. Y. 569.) In the circumstances we do not deem it necessary to decide that point for that contention was not made on the hearing when the testimony bearing on this question was received. The city’s only contention then appears to have been that the permit had been duly revoked. We cannot say in the absence of evidence on the point that there is any substantial difference between the value of an irrevocable permit and one revocable only after notice and a hearing and when the public interests require it, for such an occasion for revocation would seldom arise and in a hard case for the claimants, such as this is, for the reasons stated, we are not inclined to be technical in reviewing the award and in that we have the authority of the Court of Appeals decision in the Erie Railroad case cited, where the permit to lay the tracks across the street was revocable but had not been revoked. The award for parcels “ B,” “ C ” and “ D ” is not excessive, and it is amply sustained by the evidence. The awards, therefore, should have been confirmed.

It follows that the order should be reversed with separate bills of costs to the appellants and the report of the commissioners confirmed as made, with the exception of the award to the coal company for damages to its plant, as to which confirmation should be denied.

Clarke, P. J., Dowling and Smith, JJ., concurred; Shearn, J., dissented in part.

* See Gen. Corp. Law (Gen. Laws, chap. 35; Laws of 1892, chap. 687), § 16; Code Civ. Proc. (Laws of 1876, chap. 448), § 432, subd. 2.— [Rep.