Mayor of New York v. Hart

That the city of Hew York, by the terms of the Dongan charter, granted in 1686, acquired title to the tideway, or land between high and low-water mark, on the whole circuit of Manhattan island, and held it as an absolute fee, has been decided by this court. (Furman v. Mayor, etc., 6 Seld. 567; Towle v. Remsen, 70 N. Y. 303 ; Langdon v. Mayor, etc., 93 id. 134.) The defendant, however, asserts a prior grant, made in 1666 by Governor Hicolls, to the freeholders and inhabitants of Harlem of a tract extending “ eastward to the end of the Ryver, or any parte of the said Ryver on which this island doth abutt.” If that grant ran to low-water mark, the tideway here in question belonged to the freeholders of Harlem, and never became the property of the city of Hew York. The general rule of construction would bound this grant by the line of high water, and exclude the tideway. (Ex parte Jennings, 6 Cow. 528 ; People v. Tibbetts, 19 N. Y. 523 ; Langdon v. Mayor, etc., 93 id. 144; 3 Kent’s Com. 432.) We must assume such to have been the common law at the date of the grant. Two years earlier the Dutch had surrendered Hew Amsterdam to Colonel Hicolls, who, with an .armed force, asserted the right and authority of" the Duke of York and the English government. The common law of Eng

Assuming so much, however, it is further said that the surrounding circumstances may be considered to reach the true meaning of the grant (Knapp v. Warner, 57 N. Y. 668 ) ; and that they require a construction which will carry it

That title in its origin was absolute. The city could sell the strip to whom it pleased, and it was unburdened with any preemptive privilege amounting to a legal right in any one. (Nott v. Thayer, Hoffman, J., 2 Bosw. 25 ; Furman v. Mayor, etc., and Towle v. Remsen, supra.) The only rights of pre-emption found in the statutes, attached to lands under water, granted by the State to'the city outside of the tideway, but the latter remained wholly unaffected. (Act of April 3,1807, §15 ; Laws of 1826, § 1, chap. 58 ; Laws of 1837, chap. 182, p. 166.

The other parcel of land under water involved in this litigation was in front of the tideway and granted to the city by the State. (Laws of -1852, chap. 285.) It constituted an extension into the river of about four hundred feet, and was vested in the city subject to a pre-emption right. The fourth section was thus expressed : “ The proprietors of all grants of land under water, or owner or owners of all lands adjacent to

At this stage of the case the plaintiff’s title was established to both parcels in controversy : to one of them absolutely and without condition; to the other coupled only with a preemptive right in the grantees of the tideway adjoining it in the rear, and possibly such upland owners as had no tideway in their front.

The defendant then proved a deed of both parcels given to them by the city, and a deed of part of the tideway from the city to one Coles who conveyed to them. The plaintiffs replied that its deeds were void wholly and from the, beginning, because given without a sale at public auction and without twenty days of previous notice. The further controversy is concerned with the validity or invalidity of those deeds and the rights of the parties consequent upon their execution and delivery.

The deeds were given in supposed compliance with section 11 of title 4 of the Sinking Fund Ordinance, passed in 1844, and in the succeeding year recognized and adopted by the State, and made unchangeable without the consent of the legislature, except by appropriating to the fund additional revenues. (Laws of 1845, chap. 225, § 5.) The object of this ordinance was to provide resources for the payment of the Croton water debt, and to the fund was devoted “ the net proceeds of all sales of real estate belonging to the corporation when sold.” The ordinance provided for two different modes of selling the real estate of the city. Lands under water were

"What we have already said sufficiently showed that the de- ■ fendants had no pre-emption right by force of the statute of 1852. In Nott v. Thayer ( 2 Bosw. 31 ) Hoffman, J., expressed an opinion which was concurred in by one member of the General Term that the city’s absolute ownership of the tideway was qualified and affected by its acceptance of the exterior land under water coupled with pre-emption rights, but the majority of the General Term did not concur, and the contrary was decided by this court in Towle v. Remsen (supra). That suggestion, therefore, will not sustain the defendants’ deeds. Those deeds are void unless the defendants can be said to have had some equity or just preference in the tideway-which entitled them to be preferred as purchasers.

The language of section 11 of the Sinking Fund Ordinance directing the comptroller to issue grants for lands under water “ to the parties legally entitled thereto,” if literally construed, would not cover the rights of pre-emptors. As such merely, they are not entitled to a deed. The city may not choose to sell. It is not bound to convey. It may fix a price which the pre-emptor will not pay, or hold thedand and improve it in its own manner. Nobody is “ legally entitled to a deed.” The literal language, therefore, must be, as it has been, construed broadly and liberally. Thus it was said in Towle v. Remsen (supra) relative to the pre-emption secured by the act of 1807, and which was not limited and restricted like that of 1852, that “ such pre-emptive right was not an absolute legal right to a conveyance, but an equitable claim to acquire title upon such terms as the city authorities might impose.” When the person having an equitable claim to priority of purchase as thus ■ described had agreed with the city authorities upon the terms and tendered the money or mortgage, then he became “ legally

It thus admits that in every such case, not merely grants of an extension, but in “ all cases,” including of course grants of the tideway, there is, or may be, a person who has an “ equitable claim ” to preference in the purchase. If grants of the tideway were not meant to be included why were they not excepted ? Why the broad language applicable to all grants of land under water, if as to some there could be no person legally entitled to a deed 2 Precisely where we differ with the learned counsel for the plaintiff is in a single point. He maintains that the only persons who have equitable claims to priority of purchase are those to whom some statute has given an express pre-emption right, and those only were intended by the last clause of section 11. We believe that in that section the city conceded and assumed that in “ all cases,” even where no statute had settled it, there were persons having a just preference of purchase, and those were the adjacent owners, His theory would establish this : that, where in front of an upland owner there is no extension but only the tideway, and the city for commercial needs desires on such owner’s front to have docks and wharves built for public use, and such owner is willing to accept a deed conditioned for the faithful execution of those purposes and to pay the city’s price, and so at the same time secure the public use and his own water front, nevertheless such person has no equitable claim to the grant in preference to a mere stranger. Just that we dispute. The question is not as to the precise range and scope of that equity, nor even whether it could be by the courts enforced or protected, but simply whether, when his equity has been recognized, and the deed given to him, because in justice and fairness he should have it, the city can say he was not within the terms of section 11 of the ordinance because he had no equity, and could not have been “ entitled to ” his grant. That section was intended to dictate the mode of conveyance when

If it be said that by this ruling we have practically given to the upland owner a pre-emptive right in the tideway, and so qualified the city’s fee, and usurped the office of a statute, we answer that we have, done neither. The riparian rights, however imperfect or subordinate, existed long before this court came into being; they were subject only to the paramount

The judgment should be affirmed, with costs.

All concur, except Roger, Oh. J., and Earl, J., dissenting, Miller, J., not voting.

Judgment affirmed..