People v. Baltimore & Ohio Railroad — 57 N.Y. Sup. Ct. 192

Majority

p. 192

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE BALTIMORE AND OHIO RAILROAD COMPANY, Appellant.

Headnote

Piers in Pew York city — right of the city to cmthoriee the erection of sheds, etc., thereon.

By the third section of chapter 249 of the Laws of 1875, as embodied in section 778 of chapter 410 of the Laws of 1882, commonly known as the consolidation act, piers in the city of New York, which, prior to the enactment of the act of 1875, had been used for the loading and discharging of sailing vessels regularly employed in foreign commerce, having a draft of more than eighteen feet of water, cannot lawfully bé used for the erection of sheds or structures for the accommodation of any individual or particular1 shipper to the exclusion of 'the public.

As determined by the course of legislation, and by the uniform decisions of the courts, the piers and wharves of the city of New York are but lateral extensions of the streets or highways, and, being upon navigable waters, are wholly within the jurisdiction of the People of the State of New York, as represented by the legislature, and no right to interfere therewith to the detriment of navigation, or to the obstruction of the free use thereof by the public, can be bestowed by any local authority of the city, unless such power to permit such obstruction has been specially delegated to the city by the legislature.

Appeal from a judgment of the New York Special Term of November 2, 1887, enjoining and .restraining the defendant from the use of, and requiring it to remove, the sheds and structures erected by it upon pier No. 27 East river, in the city of New York, below the Brooklyn bridge, which said pier is forty feet wide by four hundred and forty-eight feet in length.

W. IF. MacFa/rlcmd, for the appellant.

Charles F. Tabor, attorney-general, and William JZ. Wilder, for the respondent.

The material findings of the learned trial justice are, in substance, that the shed which was erected by the defendant interferes with the use of the pier as a public highway, and that, consequently, the plaintiffs are entitled to restrain such obstruction by injunction.

Hnder the ancient charters of the city of New York and under colonial and State legislation, down to the year 1871, incum

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brances and obstructions upon tbe wharves and piers, which might interfere with free navigation, seem not to have been permitted by law. (People v. Mallory, 46 How. Pr., 283 ; Commissoners of Pilots v. Clark, 33 N. Y., 251 .) All changes made in the law by the act of 1871 (chap. 574) were such only asraised the question whether or not the city of New York had the right to permit sheds or structures to be erected upon the docks for the accommodation of individual or particular shippers and to the exclusion of the public at large. The decision last cited, however, seems to have been a finality of that question, and thereby the right of the people, as represented by the legislation was reasserted. (People v. Macy, 62 How. Pr., 65 .) The decision of People v. Mallory (supra) was followed by chapter 249 of the Laws of 1875. The first section of that act legalizes the erection of sheds and of structures upon piers and bulk-heads in the city of New York, upon the condition of obtaining the consent of the department of docks therefor, and declares the erections already made to be lawful. The second section thereof prohibits the landing of any vessel at such pier or bulk-head without the consent of the owner or lessee. The third section prohibits the interference with the free public use of the wharves, piers and bulk-heads of the East river, although it preserves the existence of the sheds and structures then already existing upon such docks and piers. This last mentioned portion of the act of 1875 is embodied in section 773 of chapter 410 of the Laws of 1882, commonly known as the consolidation act.

The exception made by section 773 of the consolidation act is confined only to any wharf, pier, slip or bulk-head “which has heretofore been used for the loading and discharging of sailing vessels regularly employed in foreign commerce, and having a draft of more than eighteen feet of water.” The evidence is con. elusive to the effect, that for many years prior to the enactment of the act of 1875, this pier, No. 27, had been used for the loading and discharging of sailing vessels of that description.

As is determined by the course of legislation and by the uniform decisions of the courts, the piers and wharves of the city of New York are but lateral extensions of the streets or highways, and, being upon navigable waters are wholly under the jurisdiction of the people as

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represented by the legislature, and no riglit to interfere therewith to the' detriment of navigation or to the obstruction to the free use of the public can be bestowed by any local authority of the city, unless the power to permit such obstruction has been previously delegated by the legislature. Hence it is, that any permanent structure which amounts to an obstruction to the public use of the pier as a public highway for the purposes of commerce, as the erection by the defendant is shown to be, is such an obstruction as the people, represented by the attorney-general, may cause to be removed by a suit for that purpose. It is not a sufficient answer for the defendant to show a mere permit given to it by the department of docks, so long as the act of 1875, now embodied in section 778 of the consolidated act, exists.

It follows, therefore, that the judgment should be affirmed with costs.

Van Brunt, P. J., and Bartlett, J., concurred.

Judgment affirmed with costs.