Sage v. Mayor of New York

Patterson, J.:

The claim of the plaintiff is presented in two aspects: First. He asserts ownership of the land reclaimed from the water and contiguous to his upland; an alleged ownership arising from ancient grants, or, failing that, growing out of the principles and rules of law relating to accretions of land from alluvion or reliction. Second. If it is held that the claim of ownership of the made or reclaimed lands is not established, the plaintiff insists that he is entitled to compensation for the destruction of his riparian rights .caused by the acts of the officers of the city of New York in carrying out the improvement of the water front opposite his premises, which ac-ts are set forth in the pleadings or admitted in the stipulation eontainizig the proofs in this action. We understand that the defendant does not urge any objection to the form of the action, and, therefore, we have not taken that subject into consideration.

It was held in the court below that the plaintiff’s ownership was of the upland to high-water mark only. There is nothing in the agreed statement of facts to justify a different finding. The plaintiff’s title to the upland is derived from or through the grant of Governor Nicolls made in 1666 to the freeholders and inhabitants of Harlem. That grant stopped at high-water mark. {Mayor, etc., v. Hart, 95 N. Y. 443.) The land under water between high and low-water mark, or, as it is called, the tideway, has belonged to the city of New York since 1686. That necessarily disposes of the plaintiff’s claim to a title by deed or grant. The same result follows with respect to his claim to the made land as an accretion. By the Dongan and Montgomerie charters, the city of New York acquired title to all the land between high and low-water mark. {Towle v. Remsen, 70 N. Y. 303.) The title thus acquired has been virtually confirmed by every Constitution of the State of New York from that of 1777 to that of 1891, and is the foundation of the right of the city and its grantees to the whole water front of Manhattan island. The improvement made in front of the plaintiff’s premis.es, either by filling in or by the construction of the exterior street and bulkhead, and the consequent exclusion of the water from the former tideway, has merely converted the city’s land under water into terra, firma. The city has lost no right nor has the plaintiff acquired any, simply because of the reclamation of the land, for that land was indisputably the property of the city in its original state, and has not ceased to be so- because its surface has been made peiTnanently dry land. The plaintiff, therefore, has no claim to ownership of any of the land between original high and low-water mark, and he can claim nothing beyond low-water mark, for the interposed land of the city lies between his property and that reclaimed between low-water mark and the exterior street.

That leaves for determination the question of the right of the plaintiff to compensation for the destruction of riparian rights or easements. It is unnecessary in this particular case to consider the general subject of the right an upland owner has in, to or upon the waters immediately adjacent to his property. The contest between the parties to this action must be disposed of upon the particular facts relating to the property rights of the city of Hew York in the land under water immediately surrounding Manhattan island. By the Dongan charter of April 27, 1686, all the land under water, between high and low-water mark, around that island was granted to the city of Hew York. The Montgomerie charter of January 15, 1730, confirmed the Dongan grant and ceded an additional 400 feet beyond low-water mark from the Battery to what is now known as King or Oharlton streets on the Horth river, and to Corlear’s hook (about Houston street) on the East river. By an act of the Legislature of the State of Hew York, passed April 3, 1807 (Ohap. 115), the grant of the additional 400 feet was extended on the Horth river to about Seventy-fifth street, and on the East river to about Fortieth street. By an act of the Legislature, passed February 25, 1826 (Chap. 58), the grant of the 400 feet line of 1807 "was extended on the Horth river to Spuyten Duyvil creek, and on the East river to the Harlem river. On the 14th of April, 1852 (Chap. 285), land under water on the Harlem river, from the East river to the Horth river and beyond low-water mark, and to an exterior street to be laid out by the city, was granted. The premises in question had a frontage on the Harlem river, and, as has been seen, the land under water between high and low-water mark in front of such premises was granted to the city by the Dongan charter in 1686, and the additional grant of land under water to the exterior street was granted by the act of 14th of April, 1852. The improvement constructed by the city of Hew York has redeemed, from the water, land ceded in part by the original charters and in part by the act of 1852. It is an improvement for the benefit of the public. If the grant to the city of Hew Yorb, contained in the Dongan charter, authorizes it to destroy or impair the plaintiff’s alleged riparian rights without compensation, it becomes altogether immaterial to consider any question of the city’s use of the land beyond low-water mark, granted by the act of 1852; for as to that, ■ while under the act of • 1852 there may be a preservation to the upland, owner of a pre-emptive right or ecpiity in the made land, no other right exists that would not be effectually destroyed by the paramount right of the city to fill in or otherwise use the land under water, granted by the Dongan charter, if such right inheres in the city.

It has been determined by the courts of. this State that, under the Dongan charter and its confirmations, the city of New York acquired an absolute fee to the tideway. That was clearly held in Furman, v. The Mayor (10 N. Y. 568), and it is there stated to be well settled and to admit of no dispute. That being so, the city held that land under water in precisely the same way, with the same incidents of ownership, and with the same right to use and dispose of it that a private individual would have in the real estate of which he stood seized. In Nott v. Thayer (2 Bosw. 61) it is stated by the court that it was not disputed by either party that the corporation had an absolute fee in the tideway. In Towle v. Femsen (10 N. Y. 308) it is said that the corporation had an absolute fee in the tideway, and that it necessarily followed that the city had a perfect right to make a grant of the land in fee simple absolute; and in The Mayor v. Hart (95 N. Y. 443) it is stated that the title of the city to the tideway was, in its origin, absolute, and that the city could sell the strip to whomsoever it pleased. If such were the nature of the title of the city, the necessary incidents of ownership in fee must follow. There is nothing in the adjudged cases, and nothing in the terms or history of the grants by royal or state authority, that abridges in any way the title acquired by the city of New York. This absolute ownership of the city is said to be for public purposes. In the case of The Mayor v. Hart (supra) Judge Finch says that the Dongan charter gave the tideway for commercial purposes, and for the public use ; that the city took it as the crown had held it, as trustee for the public; but it is conceded in that case that those owning the upland might have all their rights cut off from the water by reason of the absolute ownership of the city in the tideway, and that the nature of the privileges and conveniences of the upland owner is such that they may lie at. the mercy of the sovereign, and may be taken away without compensation. That is so for the obvious reason that they stand as obstructions in the way of the sovereign’s right to benefit the public by necessary and appropriate improvements of the land over which the tide runs; and it is said in the same case that the city, by virtue of its ownership of the tideway, may destroy the privileges and conveniences by a use or grant for public purposes and without compensation. This conclusion is drawn from the special facts existing in this case.

We do not understand that the case of Rumsey v. The New York (& New England R. R. Co. (133 N. Y. 79) disposes of the question raised here. What is held in that case is : That an owner of land on a public river is entitled to compensation for damages sustained by the construction of a railway across his water front, and the deprivation of his access to the navigable part of the stream, unless the owner has granted the right or it has been taken by the power of eminent domain; and that is all that is there decided. It brings the-law of this State on the general subject of the rights of riparian owners into harmony with the liberal view of such rights taken by courts in other jurisdictions; but there was no question involved between the upland owner and the grantee of the sovereign holding* by chartered grants specifically conferring a title and ownership which gives complete dominion, and that is the distinctive feature-of this case. The right of the city stands upon its charters and grants, and confirmations thereof. Those charters and grants have been confirmed in their Ml scope and meaning, as were all royal charters, and grants antedating October 14, 1775. No limitation has been placed upon such grants. They have been confirmed as they were made. It is too late for a private person to draw into question the power of King James the Second or King George the Second, by their governors-general of the province, to grant, or the power of the Legislature of the sovereign State of New York in 1777 to-confirm, what was granted to the city of New York in absolute ownership. Among the provisions of the Dongan charter (§ 14) is one that authorizes the city to “ at any time or times hereafter, when it to them shall seem fit and convenient, take in, fill and make up and lay out all and singular the lands and grants in and about the-said city and island Manhattan’s, and the same to build upon or make use of in any other manner or way as to them shall seem fit as far into the rivers thereof and that encompass the same as low-water mark aforesaid.” That term of the grant was confirmed with all the rest, and gave the city the right to do just what it has done and is doing, and it was confirmed before any question could arise of the constitutional right of an upland owner to compensation for being deprived of his riparian rights or easements; and it is not shown by any authority that the royal grant, when made, could not be availed of by the city without making compensation to the upland owner. It is upon the exceptional state of facts arising out of the nature and terms of the grants to the city, their proper construction, and the rights acquired under them, that we think the judgment of the court below was right, and should be affirmed.

Van Brunt, P. J., and Williams and O’Brien, JJ., concurred; Ingraham, J., dissented.