Duryee v. Mayor

This action was brought to recover the damages occasioned by an eviction from and injury to the lands of the plaintiff through the alleged unlawful conduct of the defendant, and would, under the former system of pleading, have been denominated an action of trespass on the case. The premises in question were water lots in the East river adjoining the lands between Thirty-fourth and Thirty-sixth streets in the city of New York, .and were sold by it for the purpose of filling and using as land for the extension of streets thereon, and the erection of wharves, piers and buildings thereover.

After the original grant of these lands by the city in 1848, the defendant, for the accommodation of the inhabitants of a large section of its territory, constructed a temporary sewer in Thirty-fourth street, which originally emptied into the river at the foot of the street. In 1865, desiring for some purpose to change the location of the outlet, the defendant built a new one, causing it to discharge over the plaintiff’s premises through an artificial side-cut, projecting nearly at right angles with the street, and terminating at a point about three hundred feet from the terminus of the street. Before constructing this outlet, license to flow the lands was obtained by the defendant from the plaintiff’s grantor, one Geo. F. Tallman. This license was for an indefinite period, and consisted simply of the licensor’s written consent to the proposed occupation of the lands for the purpose of a temporary servitude. .

In 1867 the plaintiff acquired the title to the lands and proceeded to build bulk-heads on the exterior water line established by the public authorities, and to fill up the spaces intervening between such line and the shore line of the river. This proceeding threatened the obstruction of the outlet of the sewer, and not only a deprivation to the citizens of the benefits secured thereby, but danger to the public health from the want of proper sewerage. Under these circumstances the

It is not, however, claimed that plaintiff’s property was taken by any of the defendant’s agencies in the exercise of power conferred upon them by statutes and ordinances creating such agencies and defining their powers and duties.

The license to the defendant was expressly revoked by the

The deposit of materials upon the lot in question by the plaintiff for the purpose of making land constituted such materials a part of his real estate, and gave him the same right of action for an injury thereto, which would accrue to him for similar injuries done to the natural land transferred under his conveyance.

These acts of the defendant constituted a trespass upon the plaintiff’s property, rendering it liable for such damages as were thereby occasioned him, unless they were justified by the limitations and restrictions imposed by the sinking fund ordinances upon the power of disposition, and the covenants and conditions inserted in the deed by which the city parted with its ownership (Tillotson v. Preston, 7 Johns. 285 ; Noonan v. City of Albany, 79 N. Y. 470 ; Mairs v. Manhattan Real Estate Agency, 89 id. 498 ), and it is accordingly claimed by the appellant that the conduct of the Croton Aqueduct board, in taking and retaining possession and control of the premises as the agent of the defendant for the purposes described, was authorized by the provisions of the original deed of conveyance from the city and the terms of the sinking fund ordinances under wliich such conveyance was made.

These ordinances adopted in 1844, provide, among other things, that the lands under water on the shores of the island of Flew York, belonging to that city under its several charters,

The parties of the second part covenanted for themselves and their successors and assigns that within three months after they should be thereunto required by the party of the first part, but not until they should be so required, they would build and erect such bulk-heads, wharves, avenues and streets upon the lands described as intended for streets in said deed as might be required by the common council of said city, and fill in the same and regulate, pave and lay sidewalks thereon and keep the same in repair. It was further provided that in case of the default of the party of the second part to perform said covenant, that the parties of the first part might, at their option, either do the work thereby required to be done, and charge to, and collect from, the parties of the second part the expenses of so doing, or re-enter upon and take possession of said granted premises or any part thereof and reconvey the same to other persons. It was further covenanted by the parties of the second part that they would pay all taxes and assessments which should be lawfully imposed upon said premises, and that the true intent and meaning of the conveyance was that the parties of the second part would not build the wharves and bulk-heads, avenues and streets before mentioned, or any part thereof, or make the lands in conformity with the covenants thereinbefore mentioned, until permission for that purpose should be first had and obtained from the parties of the first part, and that they would not build or erect any wharf or pier into the East river in front of Avenue A, without the permission of the parties of the first part. It was further provided that upon a breach by the parties of the second part of any of the covenants therein

Prior to this time the city had been vested by its several charters with the ownership in fee-simple of all of the lands under water surrounding it to the extent of four hundred feet from low-water mark, and had, except for the provisions of the sinking fund ordinance, unlimited authority to transfer an absolute title in such lands to its grantees. (Furman, v. Mayor, etc., 5 Sandf. 34 .)

Upon a former appeal in this case to this court, reported in 62 N. Y. 592 , it was held that the grantee in this deed took an estate in fee-simple and became thereby invested with all of the rights and privileges of an absolute owner, except as restricted by the covenants and reservations contained in it. It was further held that the true construction of the covenants contained therein did not require the previous consent of the common council to authorize the grantees to make and fill up the intermediate spaces between the several streets and avenues therein described, but that such covenant was necessary only to authorize the construction of the streets, wharves and avenues therein provided to be made by the grantee.

It is now claimed that the sinking fund ordinances hereinbefore referred to, but which were not before this court on the former appeal, restricted the power of the corporation to convey the lands in question, except upon the condition that no land whatever should be made upon the property conveyed unless the permission of the common council to do so, should have been previously obtained.

The former decision of this court either directly or indirectly determinéd all of the material questions in the ease except that concerning the construction of such ordinance, and the further question as to whether such permission to make land had been granted or waived by competent authority on the part of the defendant.

Under the deed the trust company immediately went into

The evidence shows that while the common council previous to 1856 occasionally passed resolutions authorizing the construction of avenues, streets, piers and bulk-heads on this property, it never from the time of the original grant passed any ordinance expressly authorizing the filling up of the granted lands, except that of December 26, 1856, approved by the mayor five days thereafter.

This ordinance purports to establish a map, plan and new exterior water line on its easterly side for the city of Hew York. This line was thereby ordained to be a street called East street, running nearly parallel with Avenue A, opposite the property in question and at a distance of about two hundred feet easterly therefrom in the river. It was further ordered that the several avenues and streets between Eivington and Thirty-eighth streets be continued to East street by a prolongation of the lines of such avenues and streets. The ordinance then provided “ that the proprietors of lands adjoining or nearest and opposite to East street, as hereby established, be and they are hereby authorized and directed to make and complete said East street on or before the first day of January, 1860, and on and before the said day to fill and level the spaces between their property and the said East street.” This ordinance, so far as it attempted to establish East street as the exterior line of the city, was indirectly annulled by the paramount authority of the State legislature by the passage of chapter 763 of the Laws of 1857, which established a bulk-head and pier line on the East river side of Hew York, differing from the line of East street, and in fact running near to and almost parallel with the easterly line of Avenue A, as established in the map attached to the conveyance to the plaintiff’s grantors.

It is now claimed by the defendant, that because its agents, the common council, were not authorized to establish a line for the city beyond the boundary of the property owned by it, that the ordinance requiring the filling up of the land formerly owned and conveyed by it, is not a performance of

We do not think that it lies in the mouth of the defendant, under the circumstances, to allege the futility and invalidity of its own acts performed in pursuance of its contract obligations for the purpose of establishing a ground of forfeiture against its grantees.

By this ordinance it required its grantees to perform all that it had contracted to do, and it is not for the defendant to say that because it commanded the performance of conditions in addition to those which it was by law and its contract authorized to require, that th"e compliance by its grantees with its lawful requirements was invalid and nugatory. This resolution of the'Common council has never been modified, or rescinded by it, or by any other authority except through the operation of the act of the legislature above referred to., and so far as the common council had power to legislate or .act on the subject, remains in full force and of binding, operation, upon all affected by its terms. So far as it at-" tempted to establish an exterior line in the navigable waters for the city, it was tentative merely and confessedly subordinate to the ultimate power of the sovereign to intervene, and could have no lawful effect upon that subject without the approval of the State.

However, upon the subject of the time and manner of making the streets, avenues and lands between their exterior line and the line of high-water mark, not only the sinking fund ordinance, but the stipulation contained in its deed of conveyances invested the defendant with full authority, and assuming the plaintiff’s contention as to the meaning of the ordinance to be correct, as between it and its grantees, rendered it solely competent to determine the time and manner of such filling.

The alteration made by the legislature in the exterior line proposed in this ordinance, had no other effect than to operate as an amendment to the ordinance, and thereafter cause it

This ordinance manifested an unmistakable intention on the part of the common council not only to make and complete an exterior line for the city, but also to cause the intervening spaces to be filled up by the owners of the land opposite such line, and the construction and extension of the projected streets and avenues over such made land. Indisputable rules of construction make this ordinance applicable to the plaintiff’s grantors and the property owned by them. The provision requiring the streets and avenues to be extended could be complied with only by filling up the granted lands, and there were no other persons who answered the description of proprietors of lands, either adjoining, or nearest and opposite to East street as thereby established, except the grantees of the city and their assignees.

The State has never conferred authority upon any one to convey the title to lands m the navigable waters surrounding Hew York outside of the line four hundred feet from low-water mark, and there could not at that time have been any individual lawful owners of lands between the projected lines of East street, and Avenue A.

It seems to us that the acts of the common council, so far as they assumed to exercise the powers with which they were confessedly invested, not only by law, but by the express stipulation of the contact between the parties, are clearly operative and sustainable.

It is only when the various enactments of a legislative body are plainly dependent upon each other, and so inseparably connected in matter and design that they cannot be divided without defeating the object of the statute, that the invalidity of one provision, will entail that of those remaining. If effect can consistently with the general legislative intent be given to such parts of a statute as are not in conflict with paramount authority and are within the authority of the body enacting them, it is the duty of a court, while rejecting its unconstitutional and unauthorized parts, to enforce the remaining provisions of a

The common council in passing this ordinance acted in a twofold capacity, and appeared not only as a legislative, but also as a contracting body. As a legislator its powers were limited by the requirements of the city charter, and as a contractor by its authority as agent for its principal, the city. So far as it was authorized to act as the agent of a responsible principal, its action must be considered in the light of the principles which govern the acts of other agents, and with a view of arriving at the meaning and intent of the parties.

Under the deed in question the common council had the right to require the grantees therein and its assigns to fill up the land conveyed by it, and so far as it assumed to require any thing more its act was unauthorized and ineffectual; but, so far as it had the right to require the land to be made, its requisition was valid and effectual. Neither by the terms of the ordinance nor from the nature of things was this requirement made to depend upon the establishment of East street as

The advantages to be derived from the making of land in the locality mentioned were as much, incidental to one exterior line as to another, and did not in any degree depend upon the adoption of the particular line' indicated in the ordinances.

But it is further claimed that the plaintiff is not entitled to-the benefit of the provisions of this ordinance of the common council, because neither he nor his grantors complied with its. terms in respect to the time of making the land in question. We do not think this is so. Even if a condition had been inserted in the deed imposing a forfeiture of the title conveyed, unless the grantee caused the land to be filled up within a specified time, it would be inoperative unless expressly enforced by the grantor, and it would be entirely competent for the grantor, either wholly to waive the forfeiture, or to extend the time within which the condition should be performed. (Ludlow v. N. Y. & H. R. R. Co., 12 Barb. 440 .)

We think that the facts in this case establish a clear and unequivocal waiver of this condition in respect to the time of making the lands provided for, even if it should be regarded as applying to the lands between the streets, etc.

When the plaintiff, in February, 1867, acquired title to his premises, the process of making wharves, piers, streets, avenues and land had been carried on for nearly twenty years, not only without objection from the city authorities, but under the direc

It may very well be doub.ted whether the construction formerly given by this court to the covenants contained in the • deed should not also be deemed applicable to the provision of the sinking fund ordinance.

The object of this provision was not to cause any interest in the land conveyed to be retained by the grantor, or to postpone the period of enjoyment of its owners, or increase the security of the public creditors, but was obviously designed to enable the grantor to shield itself from the burden of caring for and

The conduct of the defendant through all "of its departments, for a period of upwards of twenty years, has affixed this interpretation upon the clause of the ordinance and deed in question, and it would seem to accord with the true meaning and intent of these instruments. It was a provision originally voluntarily adopted by the city authorities, and was intended for the sole benefit of the municipality. It was not imposed as a limitation upon their authority to convey, but was adopted simply for the purpose of restraining the power of the grantee to throw an untimely burden upon the corporation. "When the deed was given, strictly in accordance with the power conferred by the ordinance, a good title was conveyed to the grantees, its object was satisfied, and all subsequent power to enforce the performance of the contract was vested solely in the city. It could release the grantee from his covenants, accept satisfaction, or waive conditions, as could any other party to a contract containing provisions intended solely for his benefit.

The rule by which this ordinance is to be construed is such as applies to the interpretation of the acts of other legislative bodies, and is that which shall best effectuate the intent of its authors. The reason and object of an act are to be regarded to arrive at its meaning, and while it is not competent to interpret that which has no need of interpretation, or to deny to clear and precise terms the sense which they naturally present, yet when such terms lead to manifest injustice and involve an absurdity, law and equity both require us to give such an effect

The only lands expressly provided to be made by the ordinance are those constituting the piers, wharves, streets and avenues, and since it is unnecessary in order to give the clause in question an office to perform, to extend it to lands outside of such streets, and to create a right unconnected with those clearly intended to be granted, it is in accordance with settled rules of interpretation to limit the effect of general language to the accomplishment of the object undoubtedly intended. (Donaldson v. Wood, 22 Wend. 395 .) If it be held that, the words “ make land in conformity thereto,” as used in the ordinance, apply only to the lands necessary to form the piers, bulk-heads and streets, the defendant will not only be protected in all of the rights intended to be secured to it, but the grantee will receive the benefits of his purchase and the deed will be free from objection on account of the apparent repugnancy existing between the interests actually conveyed and those apparently reserved.

It is quite inconceivable that parties should purchase land burdened with the condition that it should be enjoyed only by the permission of the grantor, and a construction having-that effect, should only be adopted when no other .is possible or sustainable.

But conceding, for the purposes of the argument, that the clause in the ordinance is broader than the provisions of the deed, and that it should be read in connection with it, as imposing a forfeiture of the property conveyed, upon a violation of the provision authorizing the making of land, we do not see how the appellant is, in this action, benefited thereby. The clause would, in that event, operate as a condition subsequent only, and render the property conveyed liable to forfeiture for its breach. Heglect to perform such a condition does not ipso facto determine the estate, but only exposes it to be defeated and determined at the election of the grantor, to be signified

It is stated in Washburn on Real Property, vol. 1, page 473, that “ a condition defeats the estate to which it is attached, only at the election of him who has a right to enforce it. Notwithstanding a breach of the condition, a freehold estate can only be defeated by an entry made, and until that is done it loses none of its original qualities or incidents.’’ It is said in vol. 2 Greenleat’s Cruise on Real Property, page 13, “ a condition is something inserted for the benefit of the grantor, giving him power, on default of performance, to destroy the estate if he will, and revest the title in himself and his heirs. As the law does not presume forfeiture, it requires some express act of the grantor, as evidence of his intent^ to reclaim the estate, viz.: an entry. A condition not only depends upon the option of the grantor, but is also controlled by equity, if the grantor attempts to make an inequitable use of it.” Such a use we conceive it to be when a grantor, subsequent to his grant, imposes a servitude upon land conveyed, and then attempts to perpetuate it indefinitely, by threats of enforcing a forfeiture incurred, if at all, through an effort on the part of the owner to relieve himself from the unlawful imposition of the servitude.

As we have before seen the deed conferred upon the grantees therein the title and absolute ownership of the property conveyed, subject only to be defeated at the option of the grantor for a breach of the condition subsequent.

The claim now made, that there was some right or interest in the property which still remained in the city notwithstanding its deed, is opposed to the principles declared in our former decision, and the express language of the conveyance.

The only right which the grantor reserved under the deed, as thus construed, was the right of re-entry, and of taking re-possession of the lands conveyed for condition broken. (Sharon Iron Company v. City of Erie, 41 Penn. St. 341 .) It gave it no right to burden the land with a servitude, or to occupy

It is not claimed that any such directions have ever been made, that have not been complied with by the grantees or their assigns, or that the right of re-entry has been lawfully • exercised or attempted by or on behalf of the defendant. On the contrary, when the right to fíow the lands of the plaintiff was disputed, the Groton Aqueduct board based "its alleged right solely upon the license from Tallman, and the sewer was originally constructed under such license, and not by virtue of any right asserted to have been reserved in the deed, or to exist by force of the ordinance. Obvious principles of equity estop a party who has acquired possession of another’s property by permission, from retaining it under another claim hostile to that under which the original entry was made. “ The entry must be made not by consent, invitation, or hospitality of the occupant,” “but with the intent to gain seizin, and accompanied by- some act or declaration showing such intent, and challenging the right of the occupant.” (1 Hilliard on Real Property, 64, § 17; Bowen v. Bowen, 18 Conn. 535 . See, also, Walrath, v. Redfield, 18 N. Y. 457 .)

It follows from the views expressed,

Pirst, that the action of the common council m passing the so called East street ordinance was a valid exercise of its power under the deed and sinking fund ordinance, to determine the time and manner of making the lands in question, and that the grantees of the city were thereby authorized to proceed with the work of making such lands.

Second, that the existence of the covenants and conditions

The request of the defendant for a charge upon the subject of an allowance of interest by the jury was too vague and uncertain to be made the basis of a valid exception to the refusal of the court to so charge. It is well settled that in an action of tort like this to recover even unliquidated damages, the allowance of interest by way of damages is in the discretion of the jury. (Walroth v. Redfield, 18 N. Y. 457 ; Parrott v. Knickerbocker and N. Y. Ice Co., 46 id. 361; Mairs v. Manhattan R. E. Assn., 89 id. 498.) The discretion of the jury on this question was exercised, and they have found the amount of the interest as a part of the damages suffered by the plaintiff, and we see no reason to disturb the judgment on that ground.

The judgment of the General Term affirming the judgment entered upon the verdict at Circuit should, therefore, be affirmed.

All concur.

Judgment affirmed.