Hyperlawhypertext legal database Bell v. City of New York 77 A.D. 437

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Bell v. City of New York

77 A.D. 437 Court N.Y. App. Div. English

Delivered by Laughlin, J.:

Contents

Majority

p. 437
Mary Bell, Plaintiff, v. The City of New York, Defendant.

Headnote

Dockage rights in New York city—specific performance of a contract by the city to pv/rchase them — defense that the party agreeing to sell had no interest—construction of a reservation in a grant by the city of New York of land and dockage rights— an exception therefrom, implies that an estate passed thereunder—exception void for uncertainty—what is an exercise of a reserved right pi'ecluding further action — effect of the city’s consent to the construction and use of a pier—proviso in a lease as to the city's action—prescriptive right — application of “ Sinking JBhind Ordinance”—power of the common council to grant—implied consent from the city.
In 1817 Henry Rutgers owned land in the city of New York adjoining the East river for the two blocks from Rutgers street to Clinton street, extending (high-water mark being for the most part above Water street) to the northerly line of Water street. May 1,1817, the city, pursuant to the authority of chapter 86 of the Revised Laws of 1813, granted to him the land to be “ gained out of the East River” bounded northerly by the south side of Water street, easterly by the west side of Clinton street, southerly by the northerly side of South street and westerly by the east side of Rutgers slip, excepting so much as would be necessary to extend Jefferson street, which lay between Rutgers street and Clinton street, to South street. Rutgers covenanted to build “wharves or streets ” adjoining said premises and keep the same in repair, and that they should be “ public streets or highways,” and also, when so required, to fill and construct Water and South streets and to extend Clinton, Jefferson and Rutgers streets from Water to South street.
The grantor covenanted that the grantee “shall and lawfully may, from time to time, and at all times forever hereafter 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 and reserving nevertheless so much of the said wharfage, cranage, advantages and emoluments as may accrue from so much of South Street as may be hereafter appropriated by the said
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parties of the first (part) for the purpose of forming and malting a public slip or basin after the said public slip or basin shall be formed and made."
In 1831 a committee appointed by the common council of the city of New York to investigate the matter of dock facilities along the Bast river presented a report advocating the formation of a “basin or slip” by the construction of two piers, one at the foot of Clinton street and the other about eighty feet westerly toward Jefferson street. The resolution, recommended to carry out the report, was adopted.
Hay 1, 1832, the executors of Rutgers conveyed to Henry W. Bool a portion of the lands abutting on South street. At that time the lots had not been filled in and the conveyance was made expressly subject to the exception or reservation and other covenants contained in the deed to Rutgers. Subsequently Bool and the other proprietors constructed, at their own expense, pursuant to a resolution of the common council, a bulkhead on the south line of South street from Rutgers street to Clinton street and filled up the water lots agreeably to the Rutgers grant.
The westerly pier of the proposed slip was not built at the point originally contemplated, but was built at the foot of Jefferson street. In 1833 the city constructed another pier 130 feet long at the easterly side of Rutgers slip. In 1844 the “ Sinking Fund Ordinance” was adopted, vesting the making of grants of land under water in “the Commissioners of the Sinking Fund of the city of New York" and prohibiting the construction of bulkheads and piers under such grants except with the consent of the common council. In 1847 or thereabouts, a resolution was passed providing for the construction of a pier 300 feet long midway between Jefferson and Rutgers streets, which pier, known as pier 45 (old number), was subsequently built. June 19, 1848, William and Thomas Dennistoun acquired, through certain mesne conveyances, the premises previously conveyed to Bool, together with the wharfage rights. Such conveyances were made by express stipulations therein subject to the conditions of the Rutgers grant. In 1849 William and Thomas Dennistoun constructed, at their own expense, pursuant to a resolution of the common council, a pier 300 feet long in front of their premises, which pier is known as pier 47 (old number), Bast river.
At the time this pier was constructed the title of the city to the land under the water of the Bast river only extended to a line drawn 400 feet from low-water mark. This line intersected pier 47 at about the middle. Pursuant to authority conferred by section 6 of chapter 574 of the Laws of 1871, the Commissioners of the Land Office granted to the city the land under water to an exterior line passing beyond the pier in question.
Since 1849 the Dennistouns and their successors in interest have had possession of the pier and bulkhead and have received the wharfage therefrom, have kept it in repair and have paid taxes thereon. It does not appear whether or not the commissioners of the sinking fund took any action with reference to the construction of such pier.
In 1871 a plan for the improvement of the Bast river water front was adopted. _ This plan was not carried out, but an amended plan was adopted in 1898 which
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provided for the construction opposite the premises included in the Eutgers grant of four piers over 450 feet long.
At the time of the adoption of the amended plan Mary Bell had succeeded to the Dennistouns’ title under instruments which were not made subject to the Eutgers grant. January 4, 1900, the said Mary Bell entered into an agreement with the department of docks of the city of New York, by which she agreed to convey to the city of New York for a specified sum “good title to the several rights, titles and interests in and to the said wharfage rights, etc., appurtenant to one hundred and twenty feet (120) of bulkhead and to said Pier old Mo. 47, Bast Eiver, with the rights to the lands under water and riparian and other rights, if any, in front thereof and connected therewith not now owned by the city of New York or by the People of the State of New York.” The city subsequently refused to perform this agreement upon the ground that under the grant from the city of New York to Eutgers it was entitled to the possession of the premises for the purpose of a “public basin,” viz., the purpose contemplated by the plan of improvement.
In a proceeding instituted by Mary Bell to compel the specific performance of the agreement of January 4, 1900,
Held, without examining into the validity or extent of Bell’s title, that, as she was in possession of the premises and asserted title, rights and interests therein under a claim which was more than colorable, there was a sufficient consideration to support the city’s agreement and that it should be required to specifically perform such agreement;
That it would be unreasonable to construe the exception or reservation in the Eutgers grant as giving the city the right to appropriate, for a public slip or basin, the entire bulkhead opposite the two blocks originally owned by Eutgers;
That if the city based its claim upon an exception from the grant this would necessarily imply that some estate was granted to Eutgers, for otherwise the exception would be repugnant to the grant;
That, construed as an exception, such exception would be void for uncertainty as it covered nothing then in existence or capable of being identified or omitted from the conveyance;
That the proper construction of the reservation contained in the grant to Eutgers required the city to exercise its alleged rights thereunder before requiring the abutting owners to construct the wharf and piers;
That the action of the city in 1831 in deciding to construct the two piers then contemplated was an exercise of its reserved rights and an abandonment of any right to locate a public slip or basin at that point;
That, having consented to the construction of pier 47 and acquiesced in its use for a period of fifty years, it was not competent for the city to appropriate it for a public slip;
That the fact that a lease executed by Bool’s executors, February 1, 1841, contained a provision for a reduction of the rent in case the city should take the bulkhead for public use was not inconsistent with the above construction of the Eutgers grant;
That the sinking fund ordinance did not apply to that portion of pier 47 which
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was constructed beyond the 400-foot mark, and that the common council of the-city had the right, under chapter 86 of the Bevised Laws of 1813, to grant not only the city’s consent to the construction of this part of the pier, but the consent of the State as well;
That, as this portion of the pier had been constructed and used under a claim of right for more than twenty years before the city obtained title to the land beyond the 400-foot line, the plaintiff had acquired a prescriptive right to-maintain this part of the pier and to access thereto over the waters of the State;
That the pier in question, having been constructed by the abutting owner, with-, the consent of the common council, the sinking fund ordinance did not apply' to any portion thereof;
That, if the sinking fund ordinance did apply to the pier in question, the consent of the common council should be regarded as having been given in conformity to, and in compliance with, the sinking fund ordinance, and not as a recognition, of any superior title in the city.
Van Brunt, P. J., dissented.
Submission of a controversy upon an agreed statement of facts,, pursuant to section 1279 of the Code of Civil Procedure.
The plaintiff seeks the specific performance of an agreement in-writing between her and the defendant by its department of docks,, bearing date the 4th day of January, 1900. The agreement recites, among other things, that the plaintiff is the “ proprietor of all the wharfage rights, terms, easements and privileges, etc., appertaining to the bulkhead” on the southerly side of South street between Jefferson and Clinton streets beginning at a point about ninety-six feet easterly of the easterly line of J efferson street and running thence easterly to a point about one hundred and twenty feet westerly from the westerly line of Clinton street produced, “ including all right and title to the wharfage rights, terms, easements,, emoluments and privileges appurtenant to Pier old 47, East River,, not now owned by the city of New York, and all right, title and interest in and to said pier or any portion thereof not now owned by the city of New York;” that the city, by its board of docks, subject to the approval of the commissioners of the sinking fund, is. authorized to acquire by purchase “ wharf property in said city and all rights appertaining thereto not now owned by the corporation; ” that the city “ is desirous of acquiring said wharfage rights, terms, easements and privileges, heretofore described, not now owned by the city,” in accordance with a resolution of the board of docks declaring its desire to acquire said rights and property, reciting that
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it appears that the plaintiff is the “ owner in fee simple of the above-described premises, together with all hereditaments, including the riparian and wharfage rights,” containing an offer on the part of said board to purchase the same “ and to pay for a good and sufficient title thereto, free from all incumbrances,” the sum of $175,000,. providing for service of the resolution on the plaintiff and requesting an answer in writing within ten days “ whether she will sell the said riparian and wharfage rights and interests ” for the price offered,, and declaring that if such answer be not given it should be deemed that no price could be agreed upon; and then follow the terms of the contract, the material provisions of which are as follows :
The plaintiff agrees to sell and convey to the defendant by good' and sufficient deed “ all her right, title and interest in and to the wharfage rights, terms, easements and privileges, etc., appertaining to ” said bulkhead, “ including all right and title to the wharfage rights, terms, easements, emoluments and privileges appurtenant to Pier old 47, East River, and all right, title and interest in and to said pier or any portion thereof ” for the sum specified in said offer. The agreement recites that it is the essence of the-contract that the plaintiff is to convey or cause to be conveyed: “ good title to the several rights, titles and interests in and to the-said wharfage rights, etc., appurtenant to one hundred and twenty (120) feet of bulkhead and to said Pier old No. 47, East River, with the rights to the lands under water and riparian and other rights, if any, in front thereof and connected therewith not now owned by the city of New York or by the People of the State of New York; ” that the defendant agrees “ to purchase the right, title and interest, of the said party of the first part of, in and to said wharf property ” for the consideration before specified.
The agreement was subject to the approval of the commissioners, of the sinking fund, and they approved it. The defendant claims, that under an exception or reservation contained iñ a grant from the city of New York, being the plaintiff’s source of title, it is. entitled to the possession of the premises for the purposes of a. “ public slip or basin,” the purpose for which, according to plans on file for improving the water front, it is proposed to acquire plaintiff’s interests.
In 1813 the city owned all the land along and under the East
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river from high-water mark to a point 400 feet outside of low-water mark, except where it had granted the same. It acquired title from the Crown under the Dongan charter and by the Montgomerie charter-. By section 219 of chapter 86 of the Revised Laws of 1813 the city was vested with the control of the water front, including authority to construct and regulate the wharves and slips, and to take, by prescribed proceedings, the ground of individuals for those purposes. It was further provided by said act that the city might lay. out “ regular streets or wharves of the width of seventy feet in front of those parts of the said city which adjoin to the East river” (§ 220); that the proprietors of the adjoining uplands should construct said streets or wharves according to the plan adopted by the corporation and fill in any intervening space between their respective holdings and said streets or wharves, at their own expense, and should become the owners in fee of the intermediate space upon filling in and leveling the same (§ 221); and if they did not perform the work within the time fixed, the corporation was authorized to do it and recover the expense from them (§ 222); and the expense was made a lien on the adjoining premises (§ 223); that the city might direct the construction of piers at the expense of the proprietors of the adjoining lots and, upon their default, either build the piers itself and collect the wharfage, or grant the right to build the piers and collect the wharfage to any person “ in fee or otherwise ” (§ 224); that the corporation might grant to the adjoining proprietors a common interest in piers according to the breadth of their respective lots located within such limits as should be deemed proper (§ 225); that it might also, at its own expense, “ cause such and so many other public basins to be formed and completed ” as might be deemed necessary, and receive to its own use the “ slipage or wharf-age arising from the same: * * * Provided always, that nothing herein contained shall be construed * * * to interfere with any private property or right or privilege held under grants of the said mayor, aldermen and commonalty or otherwise ” (§ 228); that it might “ enlarge any of the slips in the said city ” and, “ upon paying one-third of the expense of building the necessary piers and bridges, shall be entitled not only to the slipage of that side of the said piers which shall be adjacent to such slips respectively, but also to one-half of the wharfage to arise from the outermost end of the said
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piers” (§ 230); that if any adjoining proprietors should refuse to join in the building of piers, the corporation might join with those willing to do their part and share in the wharfage accordingly (§ 231). Failure on the part of the adjoining proprietors to build the piers within the time prescribed by a notice to be published for six weeks or to contribute to the expenses thereof as the same should accrue was to be deemed a refusal to comply with the direction of the corporation (§ 232).
In. 1817 one Henry Rutgers was the owner of the uplands adjoining the East river for the two blocks from Rutgers street to Clinton street, Jefferson street intersecting his holdings. At that time high-water mark was for the most part above Water street, but Rutgers had obtained a prior grant from the city of the title from high-water mark to the northerly line, of Water street. Ho definite plan for the improvement of the water front in this vicinity had been adopted at that time. By indenture, dated May 1,1817, the corporation granted to him, as authorized by chapter 86 of the Revised Laws of 1813 already mentioned, the lots or land to be “gained out of the East River,” bounded northerly by the south side of Water street; easterly by the west side of Clinton street; southerly by the northerly side of South street; and westerly by the east side of Rutgers slip, as the same were designated on a map annexed, excepting so much as would be necessary to extend Jefferson street to South street. The grantee covenanted that on three months’ notice he would build the “ wharves and streets ” adjoining said premises, as designated on the map, and keep the same in repair; and that they should be “ public streets or highways.” This agreement obligated the grantee, when so required, to fill and construct Water and South streets, and to extend Clinton, Jefferson and Rutgers streets from Water to South street. The grantor covenanted and agreed that the grantee, his heirs and assigns, on performance of the covenants and conditions on his part, “ shall and lawfully may, from time to time, and at all times forever hereafter 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 and reserving nevertheless so much of the said
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wharfage, cranage, advantages and emoluments as may accrue from so much of South Street as may be hereafter appropriated by the said parties of the first (part) for the purpose of forming and making a public slip or basin after the said public slip or basin shall be formed and made.”
In 1831 the attention of the common council was drawn to the insufficiency of dock facilities along the East river. It was proposed by the committee to whom the matter had been referred to form a. “ basin or slip ” at the foot of Clinton street by two piers 130 feet long, as shown on a map presented with the report of the committee. The map shows the easterly pier at the foot of Clinton street, and the other about 80 feet westerly toward Jefferson street. The report further proposed that the corporation bear one-third of the cost of the easterly pier and all of the cost of the westerly pier,, reciting that the common council had “ reserved the waters adjacent for public purposes.” The resolution recommended to carry out-the report was adopted.
By deed dated May 1, 1832, the executors of said Rutgers conveyed to one Henry W. Bool 144 feet of the lands abutting on. South street opposite the bulkhead or wharf and pier. By that time the lots had not been filled up, and the conveyance was made expressly subject to the exception or reservation and other covenants and conditions in the deed to Rutgers above set forth. By a resolution adopted the preceding March, the common council had granted permission to said Bool (as if he already owned an interest in the premises) and others to sink a bulkhead on the south line of South street from Rutgers street to Clinton street, and fill up the water lots agreeably to the Rutgers grant aforesaid. Pursuant to this resolution, Bool and the other proprietors subsequently sunk the bulkhead, built the wharves or street and filled up the water lots at their own expense, agreeably to the conditions of the grant.
The proprietors of the adjacent land easterly of Clinton street, were given an opportunity to join in the construction of said pier to be built at the foot of Clinton street, according to said provisions of chapter 86 of the Revised Laws of' 1813, but none joined, and the city constructed that pier at its own expense in 1832. If the westerly pier had been constructed as originally proposed, it would have formed a slip or basin 80 feet wide by 130 feet long, all east
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■erlyof the locus in quo. But on the 14th of January, 1833, the street commissioner proposed to the common council to change the plan by locating the westerly pier at the foot of Jefferson street, so as to form a “ capacious basin.” The change was adopted and the pier built solely at public expense, without giving adjacent owners the opportunity to join in its construction afforded by the original plan. These two piers, the one at the foot of Jefferson street and the other at the foot of Clinton street, are known as pier 48 (old number) and pier 46 (old number), East river, respectively. The «city has maintained them and has received the entire wharfage or profits therefrom.
In 1842 the annual quit rent reserved in the Rutgers grant was released. The city likewise in 1833 constructed pier 44 (old number), East river, 130 feet long, at the easterly side of Rutgers slip, after giving the adjacent owners an opportunity to build it themselves.
In 1844 what is known as the “ Sinking Fund Ordinance ” was adopted. This ordinance regulated the fiscal affairs of the city, and purported, among other things, to vest the sale and disposition of real property, including grants of land under water, in “ the Commissioners of the Sinking Fund of the city of New York,” composed of the mayor, recorder, comptroller and treasurer of the city, and the chairman of the finance committee of the board of aldermen and assistant aldermen, respectively. The construction of bulkheads •and piers under such grants, however, was inhibited, except with the consent of the common council. Chapter 225 of the Laws of 1845 authorized the city to borrow money for the purpose of liquidating the damages and expenses of introducing Croton water into the city, inhibited the amendment of said ordinance without consent of the Legislature, and provided that “ the said ordinance shall remain in full force until the whole of the debt created for the introduction of the Croton water into the city of New York shall be fully redeemed.”
It appears from the report of the committee on wharves, etc., to the council in 1847, that the city did not have enough piers to accommodate its commerce, and that the opinion was prevalent that wharfage property did not yield fair returns. Resolutions were adopted directing the construction of several piers, among them one
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300 feet long midway between Jefferson and Rutgers streets, and providing that notice be given to the adjacent proprietors to unite in the construction of said piers. One lot owner remonstrated against the pier, and only one offered to join or to build it all at his own expense. He was permitted to build it all, but it was provided that if others should elect to pay their share on or before completion, they should be permitted to do so and to share in the pier according to their respective holdings. The pier was built by one adjacent owner, who has held possession thereof and received the wharfage therefrom. This is known as pier 45 (old number) East river, and is not directly involved in this case.
On the 19th of June, 1848, William Dennistoun and Thomas Dennistoun acquired, through certain mesne conveyances, the premises previously conveyed to Bool, together with the wharfage rights. The consideration stated in the deeds to them was $42,000’ for the lots and $6,000 for the property in the wharf. These deeds were made, by express stipulation therein, subject to the conditions of the Rutgers grant of 1817.'
On the 10th of February, 1849, a resolution of the common council was approved, directing that a pier 300 feet long by 40 feet wide be built midway between Clinton and Jefferson streets, and that notice be given to the proprietors of lots lying opposite to unite in the construction of the pier. This resolution was adopted agreeably to a petition presented by the proprietors and lessees of the lots opposite. W. and T. Dennistoun were the only proprietors that offered to join in building the pier, and they offered and were permitted by resolution, approved April 17, 1849, to erect the pier at their own expense, on condition that others should be permitted to share in the pier on paying a proportionate part of the expense on or before the completion thereof.
The pier was directly opposite the lots of W. and T. Dennistoun they completed it in 1849 ; none of the adjoining proprietors elected to join in the expense; and they and their grantees have always had possession of the pier and bulkhead and exclusively received the wharfage therefrom. This is known as pier 47 (old number), East river, and is the pier in controversy. The plaintiff is the niece of William and of Thomas Dennistoun, and fully succeeded to their title prior to 1878. Said property has all been assessed as real
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property, and the taxes thereon paid by the plaintiff and her predecessors. The bulkhead and pier have been kept in repair and the slips on each side dredged by plaintiff and her predecessors at their own expense and as required by the city authorities. The pier was practically rebuilt in 1868, and again in 1882, by plaintiff and her predecessors in title. It does not appear that the commissioners of the sinking fund took any action with reference to-the construction of the pier, or that they did not.
In 1871 a plan was adopted by the board of docks, and approved by the commissioners of the sinking fund, for the improvement of the water front along the East river, including that opposite the bulkhead and pier in question. This plan contemplated an exterior street 250 feet wide, including the 70 feet of South street, and piers extending, at designated points into the river. This action was-taken under section 6 of chapter 574 of the Laws of 1871 (amdg., Laws of 1870, chap. 137, § 99), which contemplated that “rights,, terms, easements and privileges ” not owned by the corporation and pertaining to any wharf should be acquired by purchase or condemnation. The essential provisions of this statute have been continued in the successive city charters (Laws of 1882, chap. 410, § 711 et seq.; Laws of 1897, chap. 378, § 816 et seq.), and the authority to alter the plans conferred on the department of docks with the approval of the commissioners of the sinking fund. An amended plan was adopted in 1898 and approved in 1899, the plan of 1871 not having been carried out. The amended plan contemplates an exterior street 150 feet wide, including the 70 feet of South street, and piers located at designated points extending into the river. Opposite the original grant, extending from Rutgers to Clinton street, there are designated four piers, all over 450 feet long, forming three spaces, slips or basins, where there are now five shorter piers, forming four spaces, slips or basins.
At the time of the grant to Rutgers the land under the waters of the East river, beyond the 400 feet from low-water mark, was vested in the People of the State of New York. A line 400 feet from low-water mark appears to intersect the piers in question at about the middle. Pursuant to authority conferred by section 6 of said chapter 574 of the Laws of 1871, the Commissioners of the Land Office granted to the city the land under the waters of the
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East river to an exterior line defined in said grant passing beyond the end of the pier in question.
The foregoing are the only facts deemed material.
Theodore De Witt, for the plaintiff.
Theodore Gonnoly, for the defendant.

The agreement was executed as authorized by law, in lieu of proceedings to acquire the plaintiff’s title or rights by eminent domain. 'There is no claim of fraud or mistake and no demand for a rescission or reformation of the contract. No definite theory seems to be developed or presented for relieving the city from the fulfillment of its contract. The argument of the learned counsel for the •city is not that the plaintiff has no property rights or interest to convey, but that the city, under the reservation in its grant to Rutgers, is authorized to appropriate this pier and bulkhead or wharf by establishing a public slip or basin, and that, therefore, it becomes unnecessary at the present time to acquire any other rights -or interests she may have.

Tinder the provisions of the act of 1871, to which reference is made in the statement of facts, the department of docks, in addition to being authorized to acquire title where the city had no title, was .authorized to acquire by agreement or condemnation “ any rights, terms, easements and privileges” pertaining to any wharf not •already owned by the city. If, therefore, the plaintiff had any right, title or interest to convey, it was competent for the city, through its department of docks, to purchase the same. No question of adequacy of consideration is presented or could be raised •on this record, and it is not shown that the enforcement of the agreement would be unfair, inequitable or unjust, requiring that a •decree for specific performance be withheld. (Winne v. Winne, 166 N. Y. 263 .) If the plaintiff is able to convey or release the night, title and interest which she has agreed to convey or release, it would seem, therefore, that she is entitled to judgment for specific performance.

The first question to be considered is, what has the plaintiff agreed to convey or release ? It is not shown that the commis

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sioners of docks were not aware-of the reservation in the grant from the city to Rutgers at the time they entered into this agreement with the plaintiff. The agreement indicates that they were aware that the city probably had some title or interest in the premises. It is a reasonable assumption that in the performance of their important duties, aided by' the advice of counsel, they became familiar, in a general way at least, with the grants of water rights and privileges previously made by the city. In these circumstances the defendant in making the contract is chargeable with knowledge of the rights and privileges previously reserved by the city itself. The contract in question should, therefore, be construed in this light. Thus construed, it is clear that the agreement on the part of the plaintiff was to sell and convey all outstanding right, title and interest not owned by the city or by the People of the State ; and the reasonable construction of the agreement is that she represented that she owned and was able to convey good title to all such outstanding rights, titles and interests. The city, of course, was not chargeable with knowledge as to where the title to these outstanding rights, titles and privileges was vested. The plaintiff was in possession, claiming ownership. The object of this agreement was to acquire the outstanding rights so that the city would have, with the title it then possessed as the owner of the fee, and with the title it had acquired or might thereafter acquire from the State, complete title. It is clear that if there is any outstanding right, title or interest not owned by the city or the People, it is owned by the plaintiff. There was a good consideration for the agreement. She was in possession, claiming title, rights and interests, and her claim was something more than colorable. We might very well end the discussion with a statement of the grounds upon which she could, at least with much plausibility and force, assert title, whether successfully or not; but in view of the importance of the litigation we deem it proper to consider the validity and extent of the plaintiff’s title.

The city unquestionably owns the fee of South street; but South street was built by the plaintiff’s predecessors in title pursuant to the covenant contained in the grant to Rutgers ; and through that grant her predecessors in title and the plaintiff acquired the right

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to wharfage on that part of the bulkhead opposite her premises, subject only to the reserved right of the city to appropriate part of the bulkhead included within the original grant for the purpose of a public slip or basin. It is contended on the part of the city that, this reserved right has never been exercised, and that it is now at. liberty, under the plan of dock improvements adopted in 1898, to-claim the benefit thereof. That plan does not purport to be an appropriation of a public slip or basin under the reservation contained in the grant to Rutgers. It is a general plan for dock improvements, embracing the entire frontage covered by the grant, to Rutgers and more. It contemplates four piers opposite the premises embraced in this original grant and three slips or basins in between. The city’s reserved right was to locate, not three public, slips or basins, but only one, and at the time the dock improvement of 1898 was adopted there were and are now five piers, with water between, opposite this tract. These five piers were constructed by authority of the city and have been in use for more than fifty years. It appears that ever since 1833, when the city changed its original plan and constructed the second pier opposite Jefferson street, instead of eighty feet westerly of the first pier, which was at the-foot of Clinton street, the plaintiff and her predecessors in title have exercised the sole right of collecting wharfage and cranage along the bulkhead, opposite the premises now owned by her. It also-appears that pier 47 was constructed by the plaintiff’s predecessor in title with the consent of the city in 1849, and that they and she have ever since exercised the exclusive .right to the use thereof, including collecting wharfage and cranage thereon, and have kept the pier in repair, dredged adjacent thereto by direction of the city authorities, and that the same has been continuously taxed to them as real estate and they have paid the taxes thereon. The city having directed or consented to the construction of these piers, and having acquiesced in their construction and use for fifty years, it is not competent for it now to make an appropriation of part or all of this bulkhead for a public slip or basin. It should be deemed to-have exercised its reserved rights in determining upon the first plan of dock improvements made in 1831, by which no part of the bulkhead adjacent to the plaintiff’s premises was attempted to be appropriated. A reserved right is limited by the rule of reasonable enjoy
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inent. (Grafton v. Moir, 130 N. Y. 465 .) An exception or reservation must lie construed most favorably to the grantee. (Blackman v. Striker, 142 N. Y. 555 .) It would be unreasonable to construe the exception or reservation as giving the grantor the right to appropriate the entire bulkhead opposite the two blocks for a public slip or basin, and would render the same void on the ground of repugnancy. (Schermerhorn v. Negus, 1 Den. 448 ; Craig v. Wells, 11 N. Y. 315 ; Jones v. Port Huron E. & T. Co., 171 Ill. 502 ; De Peyster v. Michael, 6 N. Y. 467 ; Greene v. Greene, 125 id. 506, 512 .)

If the city bases its claim on an exception from the grant, this necessarily implies that some estate was granted, for otherwise the exception would be repugnant to the grant. (Craig v. Wells, supra.) Construed as an exception, the exception would also be void for uncertainty, for it covered nothing then in existence or capable of being identified and omitted from the conveyance. (Thompson v. Gregory, 4 Johns. 81 ; Flaherty v. Cary, 62 App. Div. 116 , and cases cited.) This case is distinguishable from Consolidated Ice Company v. Mayor ( 53 App. Div. 260 ; 166 N. Y. 92 ), in that there the street excepted from the grant had been laid out upon maps and was clearly defined and capable of being located, whereas, here the public slip or basin had not been laid out. It will be seen from the statement of facts that the city did not require the plaintiff’s predecessor in title to construct South street until 1832, which was after it had determined upon the erection of the two piers in 1831. Whatever election the city desired to make should have been made before requiring these improvements. The abutting owners were justified in assuming, therefore, that the action of the city in 1831 was an appropriation under this reservation. That seems to have been the practical construction placed upon the grant and acquiesced in by all the parties ever since. The city contends that the action of Bool’s executors in leasing the abutting property on February 1, 1841, with a proviso in the lease for a reduction in the rent in case the city should take the bulkhead for public purposes, is inconsistent with this theory. The city was not a party to that lease. The admission should not be deemed an estoppel as against the executors. It does not show that the executors recognized the right of the city, but it was rather a provision inserted presumably

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to satisfy the tenants. It is not reasonable to suppose that it was within the contemplation of the parties when pier 47 was constructed in 1849, that it was subject to removal at any time by the city’s electing to locate a public slip or basin there. The fair and reasonable construction-of this reservation required that the city should make the appropriation which it claimed the right to make thereunder, before requiring the abutting owners to construct the wharf and piers. Such seems to have been its understanding of its rights at the time. Having directed these improvements and authorized the construction of pier 47, it should be deemed to have waived or abandoned any right to locate a public slip or basin at that point. (Snell v. Levitt, 110 N. Y. 595 ; Cartwright v. Maplesden, 53 id. 622 ; Crocker v. Crocker, 5 Hun, 587 .)

Subject to the reservation, though in the form of a covenant, the deed to Rutgers conveyed an indefeasible estate of inheritance in the bulkhead, street or wharf, and the proceedings for the construction of the pier vested a like estate therein which neither the city nor the State, although owning the fee in remainder, can take from the proprietors without compensation. (Bedlow v. Stillwell, 158 N. Y. 292 , and cases cited; Langdon v. Mayor, 93 id. 129.)

It appears that the outer end of pier 47, embracing more than one-half of the entire pier, was constructed on land owned by the State, being beyond 400 feet from low-water mark. The sinking fund ordinance did not apply at least to this part of the grant, for its operation was limited to grants of land owned by the city, and the common council had the right under chapter 86 of the Revised Laws of 1813 to give, not only the city’s consent to the construction of this part of the pier, but the consent of the State as well. (Langdon v. Mayor, 93 N. Y. 129 ; Williams v. Mayor, etc., 105 id. 419; Bedlow v. N. Y. Floating Dry Dock Co., 112 id. 263.) It was constructed and used under a claim of right for more than twenty years before the city obtained from the State title to the land beyond the¡ 400-foot line. This gave the plaintiff a right by prescription to maintain this part of the pier and to access thereto over the waters of the State. (Bedlow v. N. Y. Floating Dry Dock Co., supra; Bedlow v. Stillwell, 158 N. Y. 292 , and cases cited.)

Moreover, the sinking fund ordinance did not apply to grants for

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the construction of piers by abutting proprietors, but only in case of their refusal to construct piers when required. Such proprietors had a vested right of pre-emption, under the statute, to construct and acquire all piers that might thereafter be ordered or authorized on that part of the wharf in which they had such interest (Bedlow v. N. Y. Floating Dry Dock Co., supra); but the common council was first required to determine that the public interests would be subserved by the construction of the pier which, it has been seen, was done in this case. This having been determined, and construction by the abutting owners having been consented to by the common council, they had the right to build and to own and hold the pier and all rights necessary to its enjoyment. (Mayor v. Hart, 95 N. Y. 443 ; Williams v. Mayor, 105 id. 419; Bedlow v. N. Y. Floating Dry Dock Co., 112 id. 263 ; Bedlow v. Stillwell, supra) If the abutting proprietors refused to construct a pier, then a grant might be made to others, and the sinking fund ordinance would doubtless apply.

The case of Mayor v. N. Y. C. & H. R. R. R. Co. ( 69 Hun, 324 ; 147 N. Y. 710 ), cited by the defendant to the contrary, is not an authority in its favor. The pier in that case was erected by one having a grant, but who was not an abutting owner and had no right by prescription. As has been seen, the consent of the common council was necessary to the erection of piers, even under grants made by the city expressly for that purpose as provided by the sinking fund ordinance. If the sinking fund ordinance did apply to the construction of this pier, the consent of the common council should be regarded as having been given in conformity to and compliance with the sinking fund ordinance, and not as a recognition of any superior title in the city. If a grant from the commissioners of the sinking fund was necessary, it will be presumed to have been made after such a great lapse of time, and the plaintiff’s right to this pier is good by prescription. (Lewis v. N. Y. & H. R. R. Co., 162 N. Y. 202 , 223.)

Part of the plaintiff’s title came by will and part by conveyances, but in neither is her title made subject to the Rutgers grant. It thus appears that she acquired her title, not in recognition of the city’s right to make any further appropriation under the reservation contained in the grant to Rutgers. She came into title and has

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exercised her rights on the assumption that whatever rights the city-reserved had been previously exercised ; which clearly distinguishes this from the case of Mayor v. Law ( 6 N. Y. Supp. 628 ; 125 N. Y. 380 , 394).

It thus appears, we think, that the plaintiff had substantial property rights and all the title that it was within the contemplation of the parties that she should convey.

It follows, therefore, that the plaintiff should have judgment on the submission for the specific performance of the contract, with costs, as demanded in the submission.

Patterson, O’Brien and McLaughlin, JJ. concurred; Van Brunt, P. J., dissented.

Judgment ordered for plaintiff, with costs.

Cases cited