Citation Numbers: 30 How. Pr. 39
Judges: Miller
Filed Date: 6/15/1865
Status: Precedential
Modified Date: 1/12/2023
The questions presented upon the motions now to be considered, involve the rights of the parties to the use of the one hundred feet in width beyond First avenue, in continuation of Thirty-fourth street. In disposing of them, I will first consider the claim of the East River Ferry Company and James M. Waterbury, to the premises in question.
They claim a right superior and paramount to either of the other parties, and insist that neither of the railroad companies have any authority to enter upon or to lay down rails upon the territory in dispute. Their title is founded upon the grant of the mayor, aldermen and commonalty of the city of New York, made on the 29th of January, 1841, to the Farmers’ Loan and Trust Company, and the subsequent transfer of that title to them. The ferry company also insist that the use of the premises by the railroad company is an interference with the rights incident to the franchise which has been conferred upon them. By virtue of the grant referred to, certain lands under water east of First avenue, except a space of one hundred feet in width eastward from First avenue, and in continuation of Thirty-fourth street, were conveyed to the Farmers’ Loan and Trust Company, and by that conveyance, the grantees, and their successors and assigns, covenanted and agreed with the grantors, and their successors and assigns, that they would, within three months next after they should be thereunto required by the grantors, &c., but not until they should be thereunto required, at their own proper costs and charges, build, erect, make and finish, or cause to be built, erected, made and finished, according to any resolution or ordinance of the parties of the first part, a good %
Under this conveyance, the East River Ferry Company and James M. Waterbury have been for several months past, and now are engaged in filling in the land owned by them, adjacent to the said one hundred feet, as well as said space of one hundred feet, and in constructing a sewer by and under the direction of the Croton Aqueduct Department, and are preparing to grade and pave said space as soon as the city authorities shall fix and determine the grade lines to which they must conform, as required by the covenant in the deed. No proceedings have ever been taken by the corporation of New York to lay out Thirty-fourth street as a public street from First avenue to the ferry honse, and there has been no interference with the ferry company and Mr. Waterbury, in performing the work , until the railroad companies attempted to take possession and occppy, by laying down their tracks.
The land in reference to which this controversy has arisen, was originally, and until quite recently, a part of the East river, and entirely under water. In 1801, an act of the legislature was passed, by which commissioners were appointed to lay out the city of New York north of a certain line, and to prepare and file a map of the streets, &c. Section eight of that act declared, that said plan should be final and conclusive. A map was accordingly made in pursusance of the provisions of this act, and the space of one hundred feet beyond First avenue, in continuation of Thirty-fourth street, is not there laid down as a street. It
The title to the land in question, or a considerable portion of it, appears to have been vested in the authorities of the city of New York, under the act of 1826. By that act the title to all lands four hundred feet east of low water mark on the shore of the East river, was vested in the mayor, aldermen and commonalty of the city of New York. In the case of Furman agt. The Mayor, &c. (10 N. Y. 567), the court of appeals recognized the ownership of the public authorities in the land embraced within the limits named, and a right to sell or dispose of the same. If such right existed as was held in the case cited, then certainly the
I think that the city had a right, under the act of 1826,. to convey any of the lands embraced within its provisions. And having conveyed a portion within the limits provided by that act to the Farmers’ Loan and Trust Company, their grantees and assigns became vested with all their title to the property, and with authority to proceed and fill up the land, and to lay out the streets in accordance with the covenant contained in the deed. It was no doubt intended by the mayor, aldermen and commonalty, who made the conveyance to the Farmers’ Loan and Trust Company, to dedicate the space of one hundred feet wide in continuation of Thirty-fourth street, upon the completion of the work, and when the land was filled in, graded, regulated and paved, for the purposes of a public street. It was no part of the contract that it should be thus approriated while the work Avas in progress, and during that period the title to the property remained in the corporation, Avhile the right to its possession and control, and its use for the purposes intended, Avas in the grantees who had contracted to perform the Avork, until its completion, its adaptation to the public use, and some act done evincing the entire fulfillment of the contract, and discharging the parties who had agreed to fill up, and grade and pave, from the obligations imposed upon them. There was no power or authority in the railroad companies, to interfere Avith the rights vested by the conveyance under which the ferry company and Waterbary claimed to act. The violation of the agreement to do the Avork, Avould have worked a forfeiture of the land conveyed, and the benefits to be derived from the
The temporary use of a portion of the land filled up, was not, in mjr opinion, such a dedication of it as a public street, as would confer any rights upon the railroad companies or the public, which would interfere with the contract. The conveyance provides for the use of the space for the purpose of being filled in and graded, and so long as the contract was incomplete and in the progress of fulfillment, within a reasonable limitation, there was no dedication to the public. Even conceding the application of the rule laid down in The People agt. Kerr (27 N. Y. 188), that the title was only vested in the corporation of the city of New York publici juris, yet it would be, I think, within the principle laid down in that case, to allow the grantees or their assigns to proceed to complete the improvements contemplated by the grant made, without molestation or hindrance from parties whose interests, if any existed, were subsequently acquired. And until this was done, they should be allowed to enjoy full and entire possession of the premises. Such a course would be for the benefit of the public, as well as consistent with the rights of parties and the obligations of contracts.
Eor the reasons I have given, I am brought to the conclusion that the ferry company and James M. Waterbury, were lawfully in possession of a considerable portion, if not all, of the space of one hundred feet east of First avenue, by virtue of the deed from the municipality of the city of New York to the Farmers’ Loan and Trust Company, and so long as they were endeavoring to complete their work within a reasonable time, or until the notice of three months provided for had been served, and had expired, the railroad companies had no right to enter upon the premises and disturb their possession. Upon their doing so a remedy by injunction restraining them, existed in behalf of the
The conclusion at which I have arrived upon the points considered, render it unnecessary to inquire whether the acts of the railroad companies interfere with the chartered rights and privileges of the ferry company. The views which I have expressed, dispose of all the questions presented, so far as the rights of the Bast River Ferry Company and James M. Waterbury are concerned; but as the .possession of the premises by them must be a temporary one, for specified objects, which will be accomplished in the course of a short time, it becomes important to consider the relative claims of the rival "railroad companies, as between themselves.
The Dry Dock, East Broadway and Battery Railroad Company, ivas organized under the general railroad act, and is in the enjoyment of franchises conferred by an act of the legislature of the state of New York (S. L. of 1860, chap. 512), which authorized certain individuals therein named, and their assigns, to construct a railroad through certain streets in the city of New York to Thirty-fourth street, and thence through and along Thirty-fourth street, Avith a double track, to Avenue A, and thence through and along Avenue A, Avith a double track to, and to connect with the double track in Fourteenth street; the Avenue A referred to in the act, is on the Bast River, beyond the ferry house of the Bast River Ferry Company, and Avas and is entirely under water.
The New York and Harlem Railroad Company was chartered in 1831, to build a railroad from the city of New York to the Harlem river (S. L. of 1831, chap. 265). In 1832 they were authorized by the legislature to extend their railroad through certain other streets in the city of Nbav York, as the mayor, aldermen and commonalty of said city Avould, from time to time, permit (S. L. of 1832, chap. 93, § 1). In 1849 they were authorized to construct a
I think that the determination of the rights of the several railroad companies must depend upon the construction to . be given to the third section of the act of 1849, by virtue of which the New York and Harlem Railroad Company was authorized to construct a branch from their said road to the East river, at such a point as may be designated and permitted by the corporation of the city of New York. In the construction of statutes, we must look at the intention of the legislature in passing the act, and the objects to be attained by it. Having in view this well established rule, it is quite evident that the enactment'in question was designed to furnish a terminus to the railroad at some convenient point at the East river, which the authorities of the city might designate, and which would be consistent with the objects and purposes of the railroad company. The New York and Harlem Railroad Compan)’- was authorized to construct it to the East river, and the corporation were to designate the point. The right to locate was a discretionary power vested in the city authorities, and to be exercised at such times, and under such circumstances, as they might deem proper. The power conferred upon the corporation was not limited to any particular day, and was not to be exercised within any given number of years. It was not to be required to be done immediately, or within any fixed or definite period. It could be invoked at any time when deemed appropriate and necessary.
It is urged that by the expression “ to the East river,” was meant the East river as it then existed, at the time
It is also insisted that grants bounded by tide waters only extend to high water mark, and that this rule limits the designation. I am inclined to think that the expression employed can scarcely be considered as a boundary of a grant. It is merely an authority to extend a railroad to a
The act of 1849, which conferred the right to extend the road of the New York and Harlem Railroad Company to the Bast river, must be considered in connection with the permission granted by the corporation in 1864. And as the privileges granted were bestowed prior to the act of 1860, under which the Dry Dock, Bast Broadway and Battery Railroad Company claim to act, I am of the opinion that the New York and Harlem Railroad Company have precedence in using the space in continuation of Thirty-fourth street, when it is completed in conformity with the conditions of the conveyance to the Farmers’ Loan and Trust Company. At present neither of the railroad companies have any right to interfere with the parties who were in possession and entitled to control it at the time when the injunction in these cases were granted. The discussion ^already had covers all the material questions presented, and renders it unnecessary to examine some other points urged upon the argument.
It follows from the remarks made, that the temporary • injunction issued in the first case must be dissolved, and in the second case the order to show cause should be vacated, and the injunction continued. Ten dollars costs of making and of opposing motion, should be allowed in each case to the prevailing party.