Bechtel v. Village of Edgewater — 10 N.Y. St. Rep. 402

Majority

p. 402

George Bechtel v. Village of Edgewater.

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

1. Taxes and assessments—Boundaries—Village of Edgewater.

The description of the defendant village “along the lower and upper bay of New York,” in Laws 1866, chapter 214, under which the defendant was incorporated, was not intended to give an absolute and fixed boundary at the shore as it then existed, but a shifting terminus at the shore as it might exist either by change in the natural bank or in the artificial shore.

2. Same—Boundary of grant—When permanent.

Whether the boundary of a grant is permanent or shifting depends upon the construction of deeds and grants and upon the intent of the parties or upon the legislative intent.

3. Same—Right to tax piers and land under water.

The village of Edgewater has jurisdiction, through its trustees, to assess and levy taxes upon the lands under the water of New York bay, within its boundary, together with the docks, wharves and improvements thereon erected.

Case agreed upon in a controversy submitted to the general term without action. The plaintiff claimed that the tax for the year 1886, imposed by the village of Edgewater on certain water lots and lands under water owned by him was illegal, and imposed by said village without jurisdiction. The following is the description of the territorial boundaries of said village, as set forth in its charter, Laws 1866, chapter 214.

“ Section 1. All that certain tract of land in the towns of Middletown and Southfield, and county of Richmond, embraced within the following boundaries, that is to say: Commencing at a point on the shore of the bay of New York,

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where the center line of Arietta street, if prolonged, would intersect the shore of said bay, and running thence along the said center line of Arietta street southwesterly to the center line of the Bichmond turnpike; thence along the said center line of the Bichmond turnpike southwesterly to the southwesterly side of the Clove road; thence along the southwesterly side of the Clove road southeasterly to the Bichmond road; thence along the easterly line of the Bichmond road southerly to the northerly line of the Old Town road; thence along the northerly line of the Old Town road six hundred feet; and thence on a line parallel to and at a distance of six hundred feet from the easterly side of the Bichmond road, and continuing thence on a line parallel to and at a distance of six hundred feet southerly from the southerly line of the Fingerboard road and westerly line of Sand lane, to where said line intersects the Old Town road;. thence in a due southeasterly line to the lower bay of Hew York; and thence along the lower and upper bay of Hew York northeasterly and northerly to the place of beginning, shall hereafter be known and shall constitute the village of Edgewater.”

The following are the facts upon which this controversy depends: I. George Bechtel of the village of Edgewater, in the county of Bichmond, was the owner of considerable real estate and land under water in said village, among which was the land under water known by the assessment numbers 11 A and 11 B on map 15, and Ho. 12 on map 16 on the official assessment roll of the town of Middletown in said county, made and completed as provided by law, and which was included in the assessment roll of said village. II. That the said lands under water extend from high water mark easterly from the adjacent upland under the waters of the bay of Hew York. III. That the village of Edgewater, under the foregoing provisions of its charter, claims the right to levy assessments for village taxes upon the said land under water. IV. That the village of Edgewater is a municipal corporation duly incorporated under an act of the legislature of the state of Hew York, passed March 22, 1866, and that several acts of the said legislature have since said time been passed amending said charter of said village, and that the territorial boundaries of said village were and are as described in said title 1 of said charter.

The questions submitted to the court upon this case were as follows: First—Does the boundary of the village of Edge-water, “along the lower and upper bay of Hew York,” include within the limits of said village the lands under water, together with the docks, wharves and piers, and the improvements thereon erected, -of which grants have been issued by the commissioners of the land office to the owners of the adjacent upland within the limits of said village? Second—If it does, then has the village of Edgewater such a territorial jurisdiction as to entitle its trustees to assess and

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levy taxes upon said lands under water, together with the docks, wharves and piers, and the improvements thereon erected as aforesaid?

Wm. M. Muller, for pl’ff; Stephen D. Stephens, for deft.

The description of the villages along the lower and upper bay of New York was not intended to give an absolute and fixed boundary at the shore as it then existed, but a shifting terminus at the shore as it might exist, either by change in the natural banks or in the artificial shore. Matter of Application of Brooklyn, 73 N. Y., 179 .

The village was extended to the bay, not as it existed at the passage of the act, but as it might exist after artificial structures were erected for the purposes of commerce. Whether a grant is permanent or shifting depends upon the construction of deeds and grants, and upon the intent of the parties or upon the legislative intent. That this boundary was intended to be shifting, by the legislature, is very plain. The grant was to a village, of municipal rights. It included all the upland along the bay of New York. The village was granted municipal privileges, and no reason could exist why a narrow strip of land in front of the village should have been permitted to cut off the inhabitants from the bay or the village from jurisdiction over the same after structures had been erected for commercial uses.

There should be judgment for the defendant upon the submitted case, with costs.

Dykman and Pratt, JJ., concur.