Sage v. Mayor

—The claim of the plaintiff is presented in. two aspects: First. He asserts ownership of the land reclaimed, from the water, and contiguous to his upland; an alleged ownership arising from ancient grants, or, failing that, growing out of the principles and rules of law relating to accretions, of land from alluvion or reliction. Second. If it is held that the claim of ownership of the made or reclaimed lands is not established, the plaintiff insists that he is entitled to compensation for the destruction of his riparian rights caused by the acts of the officers of the city of New York m carrying out the improvement of the water front opposite his premises, which acts are set forth in the pleadings or admitted in the stipulation containing the proofs in this action. We understand that, the defendant does not urge any objection to the form of the action, and therefore we have not taken that subject into consideration.

It was held in the court below that the plaintiff’s ownership was of the upland to high-water mark only. There is nothing in the agreed statement of facts to justify a different finding. The plaintiff’s title to the upland is derived from or through the grant of-Gov. Nicolls, made in 1666, to the freeholders and inhabitants of Harlem. That grant stopped at high watermark. Mayor, etc., of New York v. Hart, 95 N. Y. 443 . The

That leaves for determination the question of the right of the-plaintiff to compensation for the destruction of riparian rights or easements. It is unnecessary in this particular case to consider the general subject of the right an upland owner has in, to, or upon the waters immediately adjacent to his property. The contest between the parties to this action must be disposed of upon the particular facts relating to the property rights of the city of Hew York in the land under water immediately surrounding Manhattan Island. By the Dongan charter, of April 27,1686, all the land under water, between high and low water mark, around that island, was granted to the city of Hew York. The Montgomery charter of January 15, 1730, confirmed the Dongan grant, and ceded an additional 400 feet-beyond low water mark, from the Battery to what is now known as King or Charlton streets, on the Horth river, and .to Corlears Hook (about Houston street), on the East river. By an act of the legislature of the state of Hew York, passed April 3,1807, the grant of the additional 400 feet was extended on the Horth river to about Seventy-fifth street, and on the East river to about Fortieth street. By an act of the legislature passed February 25,1826, the grant of the 400 feet line of 1807 Avas extended on the Horth river to Spuyten Duyvil creek, and on the East river to the Harlem river. On the 14th of April, 1852, land under Avater on the Harlem river, from the East rivtr to the Horth river, and beyond Ioav water mark,

It has been determined by the courts of this state that, under the Dongan charter and its confirmations, the city of Hew York acquired an absolute fee to the tideway. That was clearly held in Furman v. Mayor, etc., of New York, 10 N. Y. 568 , and is there stated to be well settled, and to admit of no dispute. That being so, the city held that land under water precisely in the same way, with the same incidents of ownership, and with the same right to use and dispose of it, as a private individual would have in the real estate of which he stood seised. In Nott v. Thayer, 2 Bosw. 61 , it is stated by the court that it was not disputed by either party that the corporation had an absolute fee in the tideway. In Towle v. Ramsen, 70 H. Y. 308, it is said that the corporation has an absolute fee in the tideway, and that it necessarily followed that the city had a perfect right to make a grant of the land in fee simple absolute; and in Mayor, etc., of New York v. Hart, 95 N. Y. 443 , it is stated that the title of the city to the tideway was, in its origin, absolute, and that the city could sell the strip to whomsoever it pleased. If such were the nature of the title of the city, the necessary incidents of ownership in fee must follow. There is nothing in the adjudged cases, and nothing in the terms or history of the grants by royal or state authority, that abridges in any way the title acquired by the city of New York. This absolute ownership of the city is said to be for public purposes. In the case of the Mayor, etc., of New York v. Hart, supra, Judge Finch says that the Dongan charter gave the tideway for commercial purposes and for the public use; that the city took it as the crown had held it, as trustee for the public ; but it is conceded in that case that those owning the upland might have all their

We do not understand that the case of Rumsey v. Railroad Co., 133 N. Y. 79 , 44 S. R. 248, disposes of the question raised here. What is held in that case is that an owner of land on a public river is entitled to compensation for damages sustained by the construction of a railway across his water front, and the deprivation of his access to the navigable part of the stream, unless the owner has granted the right, or it has been taken by the power of eminent domain; and that is all that is there decided. It brings the law of this state on the general subject of the rights of riparian owners into harmony with the liberal view of such rights taken by courts in other jurisdictions; but there was no question involved between the upland owner and the grantee of the sovereign holding by chartered grants specifically conferring a title and ownership, held for two centuries, and defined to be an absolute ownership, which gives complete dominion; and that is the distinctive feature of this case. The right of the city stands upon its charters and grants, and confirmations thereof. Those charters and grants have been confirmed in their full scope and meaning, as were all royal charters and grants antedating October 14, 1775. Ro limitation has been placed upon such grants. They have been confirmed as they were made. It is too late for a private person to draw into question the power of King James the Second or King George the Second, by their governors general of the province, to grant, or the power of the legislature of the sovereign state of Rew York in 1777 to confirm what was granted, to the city of Rew York, in absolute ownership. Among the provisions of the Dongan charter (section 14) is one that authorizes the city “ at any time or times hereafter, when it to them shall seem fit and convenient, take in, fill and make up and lay out all and singular the lands and grants in and about the said city and island Manhattan, and the same to build upon or make use of in any other manner or way as to them shall seem fit, as far into the rivers thereof or that encompass the same as low-water mark aforesaid.” That term of the grant was confirmed with' all the rest, and gave the city the right to do just what it has done and is doing, and it was confirmed before any question could arise of the constitutional right of an upland owner to compensation for being deprived of his riparian rights or ease-

YAN BRUNT, P. J., and WILLIAMS and O’BRIEN, JJ., concur.

(dissenting).—In the year 1666 the original Harlem patent was granted by Richard Nicolls, governor of the colony of New York, by which there was granted to the inhabitants and freeholders of Harlem all that tract of land within certain bounds set forth in the charter, which lands were bounded by the “ Harlem river, or any part of the said river on which this island doth abut,” together with all the soils, creeks, quarries, etc., and “ other profits, commodities, emoluments and other hereditaments belonging to the said lands and premises within the said bounds and limits set forth belonging or in any wise appertaining.” This was confirmed by a patent granted by Gov. Dongan dated March 7, 1686. The plaintiff claimstitle to the upland in question under a grant from the inhabitants and freeholders in Harlem, dated May 2, 1700, by which there is set off for Jan Louwe Boogert a piece of land lying in the bend of Ilellgate, which land is bounded by the river, and includes the land in question. See Pirsson’s Dutch Grants, 142; Riker’s History of Harlem, 491. On Septe:nber 21, 1706, John Loewsen Bogert and Cornelia, his wife, conveyed this land to Johannes Benson, and in such conveyance this grant from the inhabitants and freeholders of Harlem was recited. This deed is printed at full in Pirsson’s Dutch Grants (page 95), and is recorded in the office of the register of the city and county of New York (Liber 226 of Conveyances, at page 37); and from the said Johannes Benson the plaintiff has acquired his title. The defendant, the city of New York, is about to fill up the land under water in front of the plaintiff’s premises, thus cutting him off from all access to the river, and destroying all riparian rights that the plaintiff has by virtue of his ownership of this property abutting on the river; and this action is brought to enjoin and restrain the defendant from such action so far as it affects or destroys the property of the plaintiff. The city of New York claims title to the land under water in front of and adjoining the plaintiff’s property under the charter granted by Gov. Dongan, April 26, 1686, which was subsequent to the two patents to the inhabitants and freeholders of Harlem. By the Dongan charter, there was granted to the city of New York “all waste, vacant, unpatented and unappropriated lands lying and being within the said city of New York and on Manhattan Island aforesaid, ex

We have thus to consider what riparian rights, if any, the inhabitants and freeholders of Harlem acquired by the patent to them, and that passed from the grant by them to Bogert. The grant to the city of Yew York by both the Dongan and Montgomerie charters was the “ waste, vacant, unpatented and unappropriated lands; ” and I think it clear that the grant to the city of Yew ifork was subject to all rights that had been acquired by prior grantees. This certainly applies to prior grants by the English governors. The title that was granted to the city of Yew York by the Dongan and Montgomerie charters to right in the tideway has been several times before the courts of this state, and the title of the city of New York acquired under these charters has been characterized as an absolute fee to the tideway. See Furman v. Mayor, etc., of New York, 10 N. Y. 568 ; Towle v. Remsen, 70 N. Y. 308 ; Mayor, etc., of New York v. Hart, 95 N. Y. 443 . The question, however, as to whether or not there existed a riparian right on lands that had been granted or patented prior to the Dongan charter to the city of Yew York was not before the court, and was not determined. In none of the cases cited to us upon the argument was that question presented, and, so far as those decisions apply, it does not appear that any claim was made to the existence of this riparian right; nor was the enforcement of such right at issue. I cannot find that this question had ever been passed upon by any of the courts of this state. The city of Yew York, a municipal corporation, acts in a dual capacity. This is discussed in Dillon’s Municipal Corporations (volume 1, § 66), where the learned author says :

“In its [municipal corporation’s] governmental or public character, the corporation is made, by the state, one of its instruments or the local depositary of certain limited and prescribed political powers, to be exercised for the public good on behalf of the state, rather than for itself. * * * But, in its proprietary or private character, the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the state at large, but for the private advantage of the compact community, which is incorporated as a distinct legal personality or corporate individual.”

And this relation of a municipal corporation, and the nature of its interest in property which has been conveyed to or acquired by it, are discussed in the case of Webb v. Mayor, etc., of New York, 64 How. Prac. 16, where the court say:

“ I perceive no difference between the tenure of property thus held by the city and the proprietary rights of natural persons or private corporations.”

The first question presented is, what rights were acquired by the patentees of the Harlem patent ? There was granted by that patent the land eastward of a certain boundary to the Harlem river, as also to the North and East rivers, together with all the soils, creeks, quarries, etc., and all other profits, commodities, emoluments,- and hereditaments to the lands and premises within the said line belonging or in • anywise appertaining, with their and every of their appurtenances. It cannot now, I think, be disputed that such a grant, bounded upon an arm of the sea, vests in the owner of the land thus abutting certain riparian rights, which are well defined, and which are property appurtenant to the land so abutting.

It has been again and again decided that the title of the state to the bed of the rivers and arms of the sea was subject to the riparian right in favor of the owner of the uplands. Hedges-v. Railroad Co., 150 N. Y. 156 , and cases cited. And if the state, as successor to the king of England, owns, the property under water subject to this right of the owner of the upland, it must follow that the king of England held this property, after his grant to the inhabitants and freeholders of Harlem, subject to these riparian rights that had attached to the uplands granted.

In Yates v. Milwaukee, 10 Wall. 504 , the court say:

“ But, whether the title of the owner of such á lot extends-beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf, or pier for his own or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. * * * This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to the rights of the public, it cannot be arbitrarily or capriciously destroyed or impaired. It .is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary, that it be taken for the public good, upon due compensation.”

“ The riparian right attaches to land on the border of navigable water without any declaration to that effect from the former owner, and its designation in a conveyance by him would be surplusage. The riparian proprietor is entitled, among other rights, as held in Yates v. Milwaukee, supra, to access to the navigable part of the water on the front of which lies his land, and for that purpose to make á landing, wharf,- or pier for his own use, or for the use of the public, subject to such general rules and regulations as the legislature may prescribe for the protection of the rights of the public. In the case cited, the court held that this riparian right was property and valuable; and, though it must be enjoyed in due subjection to the rights of the public, it could not be arbitrarily or capriciously impaired.”

This case of Yates v. Milwaukee, supra, is cited with approval as determining the question respecting the rights of riparian owners by the court of appeals in Rumsey v. Railroad Co., 133 N. Y. 87 , 44 S. R. 248.

In the case of Duke of Buccleuch v. Board, L. E. 5 H. L. 462, Lord Cairns defines most concisely what is meant by riparrian property. He says:

“ It has appeared to me throughout, that the property of the plaintiff in error in this case was what is commonly called ‘ riparian property.’ The meaning of that is that it liad a water frontage. The meaning of its having a water frontage was this: that it had a right to the undisturbed flow of the river, which passed along the whole frontage of the property in the form in which it had formerly been accustomed to pass. * * * Beyond all doubt, the water right was a property belonging to the plaintiff, for which compensation was to be made.”

And in the case of Saunders- v. Eailrqad Co., 144 H. Y. 87, it was held that the defendant’s patent from the state “ was valid and effectual to vest it with all the rights that the state had in the parcel in question, but it could not extinguish or impair the easement or riparian rights which the plaintiffs or their grantors had as owners of the uplands and bank of the river.” The court then proceeded to define what these rights are:

“ They embrace the right of access to the channel or navigaable part of the river for navigation, fishing, and such other "uses as commonly belong to riparian ownership, the right "to make a landing, wharf, or pier for his own use, or for that of the public, with the right of passage to and from the same with reasonable safety and convenience.”

In the case of Van Dolsen v. Mayor, etc., of New York, 21 Blatchf. 455 , 17 Fed. 817 , the title of the defendant, the mayor •of the city of Hew. York, derived under the Dongan charter, was before the court, and this exact question seems to have been décided. It seems that in that case the plaintiff claimed

It is conceded in this case that the city of New York, as the OAvner of the tideAvay in front of the plaintiff’s property, is about to fill up that land, and use it for its own purposes, and that • this will, in effect, destroy the ¡fiaintiff’s riparian right appurtenant to his property. The city has acquired by various patents and grants, from the "crown before the Revolution, and from the state since, the fee of the land under water for a considerable distance into the river; and it claims the right to use the property thus acquired, so that, Avhen filled up, the plaintiff’s property Avill be entirely cut off from all access to the river in any way. It is clear that, if plaintiff has a riparian right as appurtenant to his property, it is appropriated and destroyed by the use to Avhich the city proposes to put the property acquired by it betAveen the bulkhead line and high-water mark. The only question that there can be, therefore, is AArhetheror not the inhabitants and freeholders of Harlem acquired such riparian right as appurtenant to the property granted to them, and Avhether the subsequent grant of the tideAvay by the Dongan and Montgomerie charters to the city of NeAY York Avas subject to this right acquired by the inhabitants and freeholders of Harlem under its patent. By the grant to the inhabitants and freeholders of Harlem, the title to the land embraced within the boundaries contained in the grant vested in the grantees; and, Avith the title to the upland, there vested the riparian rights, as part of the land granted. This right in no way depended upon prescription or a presumed grant of the croAvn. It passed as a part of the land granted, and Avas as much property as the land itself Avithin the prescribed bounds.

“ It has been now settled that the right to the enjoyment of a natural stream of water on the surface, ex jure naturas, belongs to the proprietor of the adjoining lands, as a natural incident to the right to the soil-itself, and that he is entitled to the benefit' of it, as he is to all the other natural advantages belonging to the land of which he is the owner. He has the right to have it come to him in its natural state, in flow, quantity and quality, and to go from him without obstruction, upon the same principle that he is entitled to the support of his neighbor’s soil for his own in its natural state. His right in no way depends upon prescription, or the presumed grant of his neighbor.”

And it was said by Lord Selborne in Lyon v. Fishmongers’ Co., 1 App. Cas. p. 682:

“ But the rights of the riparian proprietor, so far as they relate to any natural stream, exist jure naturas, because his land has, by nature, the advantage of being washed by the stream ; and, if the facts of nature constitute the foundation of the right, I am unable to see why the law should not recognize and follow the course of nature in every part of the same stream.”

Thus, by the law of England -which applied when these charters and grants were executed, the grant by the crown to the inhabitants and freeholders of Harlem granted to them this riparian right as part of the property itself granted. This riparian right was entirely distinct and separate from the fee of the land under water below high water mark; and, at the time of the grant to the city of New York by the charters before mentioned, this right of property existed and was owned by the inhabitants and freeholders of Harlem. The grant to the city of New York by the Dongan charter granted and conveyed to it “ all the waste, vacant, unpatented and unappropriated lands lying and being within the said city of New York and on Manhattan Island aforesaid, extending and reaching to the low-water mark in, by and through all parts of the said city of New York and Manhattan Island aforesaid.” It is conceded that this grant did not apply to the uplands within the boundaries of the land conveyed to the inhabitants and freeholders of Harlem by the prior grant. It is also conceded that it applied to the fee of the land between high and low water, the fee of that land vesting in the city of New York. But what passed with the grant of that fee of land under water ?

In Lyon v. Fishmongers’ Co., 1 App. Cas., at page 683, Lord Selborne says :

“ With respect to the ownership of the bed of the river, this cannot be the natural foundation of riparian rights, properly so called, because the word ‘ riparian ’ is relative to the bank, and not the bed, of the stream; and the connection,,

when it exists, of property on the bank with property in the bed of the stream, depends-, not upon nature, but on grant or presumption of law. * * * The title to the soil constituting the bed of a river does not carry with it any exclusive right of property in the running water of the stream, which can only be appropriated by severance, and which may be lawfully so appropriated by every one having a right of access to it. It is, of course, necessary for the existence of a riparian right that the land should be in contact with the flow of the stream ; but lateral contact is as good, jure naturas, as vertical; and hot only the word ‘ riparian,’ but the best authorities, such as Miner v. Gilmour, 12 Moore, P. C. 131, and the passage which one of your lordships has read from Lord Wensleydale’s judgment in Chasemore v. Richards, 7 H. L. Cas. 349, state the doctrine in terms' which point to lateral contact, rather than vertical. It is true that the bank of a tidal river, of which the foreshore is left bare at low water, is not always in contact with the flow of the stream ; but it is in such contact for a great part of every day, in the ordinary and regular course of nature, which is an amply sufficient foundation for a natural riparian right.”

In Gould on Waters (page 360, § 204) it is said :

“ The right to the use of the water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the soil itself. It does not depend upon user, or presumed grant from long acquiescence on the part of other riparian proprietors above and below, but' exists jure naturae, as parcel of the land. It is not suspended or destroyed by mere nonuser, although it may be extinguished by the long-continued, adverse enjoyment of others. It is not affected by the use to which the water has been or -may be applied; nor is it impaired by unity of possession and title in such land with the land above or below it. It is a natural right, which arises immediately with every new division or severance of the ownership. 1 If,’ says Chief Justice Shaw in Cary v. Daniels, 8 Mete. [Mass.] 466, ‘ the owner of a large tract through which a water course passes should sell parcels above and below his own land retained, each grantee would take his parcel with a full right, without special words, to the use of the water flowing on his-own land as parcel, and subject to the right of all other riparian proprietors to have the water flow to and from such parcel. There is no occasion, therefore, for the grantor, in such case, to convey the right of water to the grantee, or reserve the right of water to himself, in express words, because, being inseparable from the land and parcel of the estate, such right passes with that which is conveyed, and remains with that which is retained.’ ”

We thus see that, by the grant to the inhabitants and freeholders of Harlem, this riparian right as property vested in the grantees, and this riparian right as part of the úpland which was included in the grant, was not waste, vacant, un

It is unnecessary to consider whether Magna Charta applied to the colonies, and whether the king’s power to dispose of this property absolutely was limited by the fact that a prior grant of it had been made. The king had granted all his rights to this land to the Duke of York. The Duke of York thus owned both the land above and below high water. He granted this upland to the inhabitants and freeholders of Harlem, and his subsequent grant to the city of Mew York was subject to that right. Mothing in the grant to the city of Mew York indicates an intention to affect, the prior grant. On the contrary, it is only unpatented and unappropriated land which is granted to the city of Mew York; and this riparian right as property vesting in a former grantee from the king certainly was not included within a grant of waste, vacant, unpatented, and unappropriated lands lying within -certain general boundaries. I think, therefore, that the plaintiff had a riparian right which was property, and which the defendant was proceeding to deprive him of without compensation, and that, to the extent necessary to protect that right, he was entitled to judgment.

I agree with the court below as to the other questions decided, but think, for the reason above stated, that the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.