Taylor v. Brookman — 1 Abb. Pr. 169

Majority

p. 169

TAYLOR against BROOKMAN.

Supreme Court, First District ;

General Term, November, 1865.

Headnote

Injunction.—Cause of Action.

An injunction will not lie at the suit of the owner of a wharf or bulkhead, having a mere easement in the nature of wharfage in respect to the land under water in front thereof, to prevent the erection of a pier or wharf by a,n adjoining owner under the sanction of public authority.^[1]

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If injured by such, erection, his remedy is by an action for damages for the obstruction of his his easement; or, if he can show title to the land on which the erection is made, by an action to recover'possession thereof.

Appeal from an order denying a motion for an injunction.

The plaintiff, Moses Taylor, was the owner of a piece of land, being a portion of a tract formerly owned by him which was ■ bounded by Nineteenth street on the north, by Seventeenth street on the south, by Tompkins street on the east, and by Avenue B on the west, and the title to which' tract, by means' of former conveyances from the owners of the upland and by grants of land under water from the Common Council of the city, had been vested in the plaintiff. In February, 1865, he sold and conveyed to the defendants, H. D. and J. U. Brook-man, the block lying between Nineteenth and Eighteenth streets, and Avenue B' and Tompkins street, together with all the water rights growing out of or in anywise appertaining thereto.

The plaintiff retained and still owns the piece of land lying between Eighteenth street on the north, the centre line of Stuyvesant street on the south, and a line one hundred and thirty-eight feet easterly of Avenue B and Tompkins street, with the water rights and privileges thereto appertaining, and including the right of wharfage and cranage thereon, at Tompkins street, which theretofore had been the exterior line of the said city on the river.

The rights of the several owners to the land under water between Tompkins street and the land adjoining had been settled and adjudicated.

By the act of 1826, ch. 166, Tompkins' street was declared to

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be the exterior line, and all grants made or to be made by the Mayor, &c., thereby, were to be construed as rightfully made to extend thereto. Stuyvesant street had been, laid out by the proprietors of the land there as a street, and the same had been recognized as such by the public authorities, but has since ceased to be one of the streets of the city east of the Second avenue, and that part has been closed.

The act of 1857, ch. 763, p. 638, established a bulkhead along the East river from Hinth street to Forty-ninth street; and provided for the erection of a sea wall on that line from Seventeenth street to Thirty-eighth street, with openings therein, and the water space was appropriated for piers, and bridges and wet basins. This act, howéver, gave no right to the city, in the land under water between Tompkins street and the sea wall, nor any to the proprietors of the land west of Tompkins street. The-lines of the bulkhead and piers were by this act established according to the report of the Harbor Commissioners with some alterations therein stated, and all filling beyond the bulkhead line was -prohibited.

Tn December, 1863, a resolution was passed by the Common Council granting permission to the defendants as owners of the real estate situate between nineteenth and Twentieth streets, to fill in, erect and build the bulkhead to the exterior bulkhead line as established by the Harbor Commissioners, and also to erect and build to the exterior sea wall so established the pier at the end of said streets, of the usual dimensions, under the direction of the Street Commissioners. Plans and specifications were adopted and approved by the Street Commissioners.

Hnder this resolution and permission, the defendants have commenced building a pier from the foot of nineteenth street, following the line of the street to the exterior sea wall, as established by the Harbor Commissioners. The location of said pier, when extended to the sea wall line, will cross between the land of the plaintiff and the sea wall, and would cut off a portion of the end of Stuyvesant street, if extended to the sea wall, and in this way deprive the plaintiff of his right to wharfage, &c., on his land in front thereof at the sea wall, to which he claims to. be entitled.

He brought this action praying for an injunction restraining "the defendants from erecting any pier or wharf in the waters of the East river beyond a line running easterly from the inter

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section of Avenue C and the centre of Eighteenth street, parallel to the line of Stuyvesant street, as extended to the exterior line.

This motion was denied at special term, and the plaintiff now appealed therefrom.

John U. Whiting, for the plaintiff.

Gilbert Dean, for the defendants.

It is not necessary, in disposing of this motion, to examine any of the questions which were discussed on the appeal, as to the relative rights of the parties to the land lying, between Tompkins street and the upland. Those questions were settled when the grants were made by the city and accepted by the parties. All of the land under water west of Tompkins street was owned by the plaintiff, and the sale by him to the defendants, of the land between Eighteenth and Nineteenth streets, and Tompkins street and Avenue B, with the water rights attached thereto, changed the rights of the plaintiff dr his grantors, as they originally existed as riparian owners, and gave the defendants the right and title to the land under water, or reclaimed from the water, within those boundaries, free from any right as riparian owner which the plaintiff or his grantors might have before possessed in that portion of the premises so conveyed. Such conveyances also gave the defendants the right of wharfage, etc., appurtenant to the land so conveyed, along the line of the bulkhead, as fixed by the Harbor Commissioners. But the right to wharfage, etc., which accompanied this grant, could only be directly in front and adjoining the land so conveyed, and gave the defendants no right or title to the wharfage, etc., south of a point formed by the intersection of the north line of Eighteenth street with the exterior line of Tompkins street. Whatever right and title the plaintiff had to wharfage and water rights as attached to the land owned by him south of that line, still remained his, and was unaffected by that grant.

■ The enquiry in this case need not to extend beyond the question which arises as to the right of -the plaintiff as the riparian owner at Tompkins street, entitled to wharfage there, to extend that right to the sea wall, and to the intermediate space between the sea wall and Tompkins street.

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It does not appear in any of the papers submitted on this ap- . peal, whether these' piers are to be built on lines prescribed by the Harbor Commissioners or by the Common Council. If the Harbor Commissioners had laid out these piers as extensions of the streets to the sea wall, I do not see how any of the owners could successfully resist the execution of them. The legislature had power to direct such erection, or to permit' the Common Council to provide for their erection. In the absence of any proof to the contrary, we must conclude that they are laid out in accordance with the law.

As before stated, the parties owning to Tompkins street have no right to the land under water east of that street, nor is their right to wharfage affected by the erection of piers outside of that line, so long as access is afforded to the bulkhead. This is provided for by the opening to be made in the sea wall when erected. Hnder the decision made in Marshall v. Guion (11 N. Y. [1 Kern.], 461), the corporation would have the power to . direct piers to be sunk in front of the streets in such manner as they in their discretion should think proper, and the individual proprietors who might build a bulkhead to be used as a public street, and to be entitled to the wharfage thereon, would not acquire a right to construct piers projecting from that bulkhead. Demo, J., says: “It is not the ownership of a lot, but a mere easement. If injured by the erection of other piers, they might be entitled to damages,” but not to prevent the erection of piers beyond their property, and which do not, in fact, prevent the collection of wharfage upon their own portion of the bulkhead.

It seems to me, however, that this appeal must be disposed of on other grounds. When the plaintiff has no right to the land under water over which it is proposed to build this pier, he ought not, by injunction, to prevent the erection of what has been decided by public authority to be necessary and proper to the public use. His property is not invaded. He has nothing but a mere easement which may be affected, and it does not appear that even that will be interfered with by this pier. He must'show an undoubted right to what he claims before he can ask a court of equity to aid him in maintaining it.

There is also, another reason why a public improvement should not be stayed by injunction, as in the present case. It is that the plaintiff has an ample remedy by action. If he is

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injured by the erection .of this pier, he may recover a compensation in damages therefor; and if he can make out any title to the land over which any part of the pier is built, he can, in like manner, recover the same by ejectment. The erection of it would not injure him. He has no authority to build any pier over this space; and as a different plan has been adopted by the Commón Council, it is not probable that such plan would be changed so as to permit an erection of a pier on a line parallel with Stuyvesant street, more especially as that street has been discontinued and closed.

There is nothing in the cases between the owners of the upland, as set out in the complaint, which can be considered as any adjudication upon the questions before discussed. Those cases related-to the rights of the parties in the lands between Tompkins street and the shore. The decisions there made cannot be made applicable to this case, in which neither the plaintiff nor the city have any title to the fee, and where the action is brought merely to protect a right to wharfage, and not any title to the land itself.

My conclusion is that the plaintiff is not entitled to an injunction as prayed for, but that he must be left to his remedy, if he is damaged by the erection of this pier, either by an action for damages, or by ejectment, or such other mode as he may be advised.

The order appealed from should be affirmed with ten dollars costs.