Powell v. City of Rochester

These three actions were tried together and the facts are substantially the same, except that the plaintiffs Powell hold under a deed from the city of Rochester. The Genesee river, one of the largest rivers of the state, flows northward through the city and on until it finds an outlet in the waters of Lake Ontario. Front street (or Mason street, as it was then called), when originally laid out, from about opposite its intersection with Corinthian street southerly, increasingly extended into the river until at its junction with what is now Main street it was almost entirely within the river bed. From time to time efforts were made to reclaim the street, and for that purpose various walls were built to restrain the westerly spread of the waters and enable a fill to be made in their place. The history of this part of Front street is exceedingly interesting, and the evidence of these repeated efforts to utilize a portion of this river for the benefit of mankind has thrown much light upon the present controversy, although we are here directly concerned with but three of the walls in question, and with one of these only so far as it enters into the title of the premises owned by plaintiffs Powell and Miller.

In July, 1837, the common council of the city adopted an ordinance providing for the erection of a wall which should be 66 feet east from the westerly line of Front street as in such ordinance established, and that that part of Front street embraced within those limits should be improved as a street. The ordinance also reserves to the city the right at any time thereafter to improve and occupy all or any part of said street lying east of the proposed wall, as same was originally laid out. This wall is known as the wall of 1837, and is now the east line of Front street as used. Some time prior to 1837 one C. H. Carroll had erected a wall still further to the east, now known as the Carroll wall, and which, at that point, is the present west bank of the river. As the Carroll wall approaches Main street it angles westerly, and defendants now claim that the wall of 1837 was only extended northerly far enough to meet the end of this angle. A careful examination of the maps, ordinance, and other evidence seems, however, to demonstrate that this wall of 1837 was continued to the point where the east line of Front street intersected with the west bank of the river. Both of these walls, as well as those erected by Masticlc and by Works and Graves, were built in the bed of the river.

That portion of the river lying west of the Carroll wall has now been entirely reclaimed, and the separate properties of the plaintiffs Pedro and Cohen stand thereon, beginning at the wall of 1837 and

[1] In about the year 1858 or 1859 the old market house was replaced by the building now thereon standing. The market house, so called, had largely stood above the then channel of the river; but it was without basement, and no part of it extended down so as to obstruct the flow of the water. The present building, however, has a suspended basement about 8 feet 9 inches in depth, most of which is over the river. The Genesee river is subject to freshets of yearly occurrence, which at times overflow its banks, inundate the streets of defendant in its 'vicinity, and especially Front street, clog its sewers, so that same back into many buildings, and altogether cause great inconvenience and property loss to the city and its citizens. The buildings of all these plaintiffs extend into the river channel, and, while above low-water level, in such times of freshet are a serious obstruction to the free flow of the waters, and constitute a nuisance to the city and its inhabitants. City of Rochester v. Erickson, 46 Barb. 92 .

After much study and investigation had by recognized experts the authorities of the city, for the purpose of remedying this situation and for the protection of its people and their property, have decided to lower the present bed of the river 5 or 6 feet, beginning at the brink of the Upper Falls and extending to a point south of the Erie Canal aqueduct, and to raise the Carroll wall so that same shall be on an average about 3 feet higher than the crest of the flood of 1913, at the same time closing all openings now in the wall, and, so far as possible, rendering same impervious to the water. The wall as so raised will extend between 3 and 4 feet above the street floor into the rear

[2-4] It is insisted by the plaintiffs Pedro and Cohen that they are the owners of the land to the center of the river as it now is, and by the plaintiffs Powell and Miller that they are owners in fee of the land in the river under their building as now constructed. Whether these claims are well founded, or otherwise, is of minor importance. Whatever title to the land in the river they may have is at all times subject to the natural flow of the waters. No citation of authority is needed for the proposition that a man is not permitted to so use his own property as to constitute it a nuisance to his neighbors, and any obstruction of this river bed by its owners which interferes with the rights, comfort and well-being of the city and its inhabitants can be prevented. Hodges v. Perrine, 24 Hun, 519 .

While by the treaty of cession, made between New York and Massachusetts in 1786, New York granted to Massachusetts the actual ownership of the land which included the bed of the Genesee river, it nevertheless reserved unto itself “all right and title to government, sovereignty, and jurisdiction.” This reservation carries with it the right of regulation of the river for all purposes of general public use, and includes the right to declare and maintain same as a public highway, with its consequent disability to riparian owners. Smith v. Rochester, 92 N. Y. 464 , 467, 44 Am. Rep. 393 . By an enactment passed August 10, 1798, the Legislature accordingly declared the Genesee river to be a public highway. The rapids and falls, from somewhere near the present Court street dam to beyond the Lower Falls, were then, as now, a bar to actual navigation between those points; but that it was then navigable below the Lower Falls and from above the rapids for many miles is a matter of history, and that such navigability still continues to some extent is not seriously disputed, although probably the usefulness of the river for such purposes has decreased as the years have gone by. It might be a nice question to determine when a stream which by legislative enactment is made a public highway ceases to be such, but that question is not here. So long as it is used to any extent, its statutory character is not lost, and the fact that certain parts of it were never navigable does not alter its character as a navigable stream and public highway. United States v. Montello, 20 Wall. 430 , 22 L. Ed. 391 ; St. Anthony Falls, etc., v. Board of Water Co., 168 U. S. 349 , 18 Sup. Ct. 157 , 42 L. Ed. 497 . The state having thus, in the exercise of its reserved powers under the treaty, recognized the navigability of this river, it becomes immaterial whether title to its bed is in the owners of the adjoining lands or otherwise, although there might be some uncertainty upon that subject. Buffalo P. L. v. L. E. & W., 10 A. N. C. 107 ; Smith v. Rochester, supra.

[6] Even without the legislation so contained in its charter, the city under the police power has the right to build a wall in order to protect private and public property from damage and destruction by flood. In the discussion of the case of Mugler v. Kansas, 123 U. S. 633 , 8 Sup. Ct. 273 , 31 L. Ed. 205 , an act under the prohibition law declare a brewery to be a common nuisance, the court in discussing the police power said:

“The principle that no person shall be deprived of life, liberty, or property, without due process of law was embodied in substance in the Constitutions of nearly all, if not all, of the states at the time of the adoption of the Fourteenth Amendment; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community. * * * The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, cannot be—burdened with the condition that the state must compensate such individual owners for pecuniary losses that they may sustain, by reason of their not being permitted, by a noxious use of their property to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner.”

And the doctrine there enunciated has been constantly held in this state. People v. Carbonic Acid Gas Co., 196 N. Y. 421 , 90 N. E. 441 ; Rochester v. McCauley, 199 N. Y. 207 , 92 N. E. 641 , 32 L. R. A. (N. S.) 554 ; People ex rel., etc., v. Squire, 107 N. Y. 593 , 14 N. E. 820 , 1 Am. St. Rep. 893 , affirmed 145 U. S. 175 , 12 Sup. Ct. 880 , 36 L. Ed. 666 ; Health Dep. v. Rector, 145 N. Y. 32 , 39 N.

“The city of Rochester is not interfering with the existing buildings of plaintiffs, except so far as they project over the channel of the river. It Is not in this action attacking the rights of the several plaintiffs to occupy the land to the wall which is being constructed and raised by the city. It is merely seeking to have the plaintiffs use that land and maintain their buildings thereon in such a manner that the rights of the adjoining property owners and of the public generally will not be interfered with. If the several buildings of the respective plaintiffs are maintained in their present condition, streets and cellars will be hooded, and damage will bo done to public and private property, and the public health will be endangered by the filth and refuse left by the receding waters. The city now seeks to make the plaintiffs use the land occupied by them in such a manner as not to cause damage to other property or endanger the public health.”

It must not be overlooked in this connection that the reservation in the ordinances of 1837 of the right at any time thereafter to improve or occupy all or any part of the street lying easterly of the wall therein proposed operates as a restriction upon the title of the plaintiffs Pedro and Cohen, at least, and emphasizes the justice of defendant’s position.

The discussion has proceeded thus far upon the theory that, subject to the flow of the water and the right of the public to use the river for navigation, the claim of these plaintiffs to ownership of the lands in the bed of the river is well founded, or at any rate immaterial. 1 am persuaded, however, that ownership of the river bed, as it now is, is not in them.

[7, 8] By the treaty of cession above spoken of the title to all these lands, including those lying in the channel of the river, became vested in the state of Massachusetts, from which they subsequently passed to Phelps and Gorham. Whatever record rights those plaintiffs have in the premises are held through a chain of title from the deed of the 100-acre tract by Phelps and Gorham to Bbenezer Allen. That deed is not in evidence, but is referred to in that from Phelps and- Gorham to Bbenezer Hunt et al., and it was long ago definitely held, in an action where the question was squarely presented, that the deed to Allen conveyed only to the bank of the river and included none of the river bed. Starr v. Child, 5 Denio, 599 . That case has never, so far as I have been able to ascertain, been reversed or in any manner modified, and a reference to the opinion of Lott, Senator, found upon page 609, will show that there, as here, the Allen deed was not in evidence, but that its contents were made known, its construction had, and the determination made from the recitals contained in that from Phelps and Gorham to Hunt, here introduced.

Counsel for plaintiff have called attention to the decision in Commissioner v. Kempshali, 26 Wend. 404 ; but inasmuch as the Starr Case was decided in 1846, five years later, it must be held, as the latest expression of the court upon the subject, to be conclusive of the question. A comparison of the two cases shows also that in the first the deeds were not before the court, and the determinatidii was based upon die

If, as claimed by these plaintiffs, their title comes under the deed from Fbenezer Allen to Benjamin Barton, Mr. Allen assumed to convey lands which in Starr v. Child it is held never belonged to hinr. This title is, of course, good as against any one except possibly the descendants or grantees of Phelps and Gorham; but what is practically a “squatter’s title” will not be extended beyond the bounds actually occupied, and certainly will not be deemed to reach into tire bed of a river absolute ownership of which is not in the state, but by unimpeached deed in other persons.

_ [9] As to the Erickson property, the city is, by its deed to Mr. Erickson, estopped from denying the title of plaintiffs Powell and Miller to such part thereof as lies within the bed of the river, whatever may be the rights in that respect of the descendants of grantees of Phelps and Gorham. This deed, however, must be construed in the light of the nature of the property and of its phraseology. While it assumes to convey some portion of the bed of the stream, it was necessarily conveyed subject to the natural flow of the waters over it at all times. The city took it subject to that implied restriction, and could not lawfully convey it away in any other manner. The provision that the timbers of the building then or thereafter to be erected upon the premises should be permitted to rest upon the pier in the river refers to foundation timbers, and indicates unmistakably the understanding and intention of the parties that, while buildings above that level could be erected and maintained, no structure below that level was to be had.

It has been specifically held that foundations for structures on that corner could not be built in the stream. City of Rochester v. Erickson, supra. And the reasoning of the court is equally applicable to structures hanging from the building, which are barred by the terms of the deed itself, as well as because of their nuisance. For these reasons I have reached the conclusion that the work upon which defend

Judgment in favor of defendant in each action is directed, with costs.