In re the Water Commissioners , 3 Edw. Ch. 290 ( 1839 )

The Vice-Chancellor :

I do not understand that Mr. Lawrence raises an objection to the mere amount awarded to him for the land really taken, but objects, on account of collateral damage not being allowed ; i. e., future damage from a supposed obstruction to the navigation of Harlem river by means of the erection of the proposed low bridge.

Harlem river is a navigable stream. The tide ebbs and flows through it. It is an arm of the sea , and where land is bounded by an arm of the sea or a navigable river, the owner of such land has prima, facie a right only to high water-mark. All beyond, belongs to the sovereign or state.

This was so under the colonial government; and hence, in the charter of the city of New-York, known as Governor Dongan’s charier, in the year one thousand six hundred and eighty-six, the crown granted to the mayor, aldermen and commonalty of the said city of New-York, “ all the waste, vacant, unpatented and unappropriated lands lying and being within the said city of New-York, and on Manhattan’s Island, extending and reaching to the low water mark, in, by and through all parts of the said city of New-York and Manhattan’s Island aforesaid; and their jurisdiction is declared to extend to low water-mark all round the island, with power to the corporation to take in, fill up, lay out and build upon the ground or make use of in any other manner,” as far into the rivers that encompass the island as low water-mark.

Queen Anne’s charter in 1708 contains a grant of land on the Long Island shore, between high water and low watermark, extending from the Wallabout to Red Hook, and also the right to establish ferries between the city of New-York and the Long Island shore, and this is followed by the more extensive charter of George the Second, in 1730, reciting and confirming the two former grants, and granting to the corporation the addition of four hundred feet below low water-maik, in the Hudson and East rivers, and extending the jurisdiction of the city, for municipal purposes, to the Westchester shore of the Harlem river.

There is nothing in these charters which give to riparian owners the absolute right of pre-emption, though it is understood they have the preference as grantees or purchasers of the soil under water in front of their upland, whenever the corporation think proper to issue grants for land within the bounds of their ownership under the charters above mentioned, or whenever the commissioners of the land office, or state legislature," shall make or authorize similar grants of land which still belong to the state.

With respect to Harlem river, it appears the corporation owns the soil, from high to low water mark, on the shore in question. Individuals owning lands fronting thereto have no greater rights as respects the navigation of the river, than owners whose lands are situated a distance therefrom. Every citizen has an equal right to the use of the waters, and to keep the navigation open and unobstructed.

Mr. Lawrence insists that the navigation will be, in effect, stopped by the construction of the proposed low bridge ; but the authority of the water commissioners, to bring the waters of the Croton river to the city of New-York, is plenary; and sufficient to allow them to pass their works over the Harlem river. The legislature have authorized it. The question itself has been submitted to the electors of the city by public ballot; and although the present plan of a bridge for that purpose may vary in some respects from the original proposition, yet the present one is less objectionable than the former, as it would leave the navigation less obstructed.

This is not the first time that the legislature has authorized works in the Harlem river, which have interfered with and partially obstructed [the navigation. The Harlem bridge and dam are instances; but in the grants for those ob- . . . - - - , . jects, they took care to provide tor a free passage lor boats and vessels accustomed to navigate there. In the construction of Macomb’s dam, however, that provision was overlooked or disregarded, and the dam became a total obstruction, so that vessels could not pass it; and I have recently had occasion to consider this entire obstruction to the navigation a public nuisance. A bill was filed before me for the purpose of having an injunction to restrain some people of Westchester county from proceeding to abate it .as such, by removing a part of the dam, so as to open a passage for vessels through it. Upon the ground of the unlawfulness of the erection, an injunction was refused.

The legislature, possessed of the sovereign power of the state, may, by express enactment, grant to individuals or corporations the right and privilege of erecting works in or upon public or navigable rivers ; but, in doing so, they should take care to provide, in every act, against a total obstruction of the navigation. The principles that have applied to Macomb’s dam, will also attach to the low bridge of the water commissioners, in case it should be so erected as to cause an obstruction of the navigation for all useful purposes ; and it may, in such an event, be indicted and abated. The commissioners take the responsibility of their own doings. If the apprehensions in the affidavit of Mr. Lawrence are realized, he will then have, as will every other citizen, a sufficient remedy; but he cannot, at this day, claim damages at the hands of the commissioners in anticipation of a public evil. My conclusion is, that the appraisers have awarded all they were bound to award, for value and damage ; and the report must be confirmed.