Stevens v. Rhinelander — 28 N.Y. Super. Ct. 285

Majority

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Edwin A. Stevens in his own right and as ex’r, &c. and others, ex’rs, &c. plaintiffs and appellants, vs. William C. Rhinelander, defendant and respondent.

Headnote

1. A structure erected by the plaintiffs in the Hudson river, for ferry purposes, by permission of the corporation of the city of New York, (adjoining upland owned by them,) which was composed of rows of piles driven into the soil under water, and covered on the upper ends, (to which it was fastened,) by a horizontal flooring of plank, by which to reach ferry boats belonging to them, extending to the bulkhead used by them for ferry purposes, and of rows of piles driven into such soil in front of such covered piles for the purpose of guiding and receiving such ferry boats, is not such a pier as to prevent the defendants from building a.pier within one hundred feet thereof under the “act to establish bulkhead and pier lines for the port of New York,” (¿Y T. Sees. Z. 1857, ch. 763,) and the amendment thereto in 1860, {laws of 1860, ch. 522,) particularly where, at the time of its erection, piers were required by law to be built with cribs filled with stone or solid masonry; but is simply a ferry rack and bridge, having none of the essentials of a pier. -Monem, J. dissented.

2. The ownership and use of such a structure for upwards of thirty-five years does not entitle the plaintiffs to restrain the defendant from building a pier in front of upland owned by him, adjoining that of the plaintiffs, although it may interfere with some of the uses to which such structure may be put.

3. The only adverse possession of the land under water, upon which such structure stood, which could be claimed .by the plaintiffs, would be against the

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people of the state. No such adverse possession could be sustained where, as in this case, the plaintiff’s right was derived from a permission by the corporation of the city under the authority of the state, and was only to continue during its pleasure.

4. A possession to be adverse, must be exclusive, and a claim to the entire ownership. It cannot be taken and held of the beds of rivers over which the tide ebbs and flows, which can only be occupied by authority of the legislature.

6. Coupling an offer to prove that the plaintiff had paid taxes yearly for thirty years on a certain piece of land, and that certain maps were used upon the assessment of such taxes, with an offer to show that the plaintiff had been thirty years in possession of such premises, vitiates the whole, and justifies its exclusion as an entirety.

(Before Monell, Garvin and McCunn, JJ.)

Heard February 14, 1867;

decided January —, 1868.

This action was brought by the plaintiffs, as owners of a pile pier in the Hudson river, in the city of ew York, adjoining land owned by them, to restrain the defendant from building a pier in such river adjoining land owned by them within one hundred feet of the pier of the plaintiffs.

The complaint alleged as follows: On or about the 19th day of December, 1851, one John Anderson, demised certain land, water right, pier and premises in the city of New York hereinafter mentioned and described, to the plaintiffs, Edwin A. Stevens, and John 0. Stevens, and Robert L. Stevens, (now deceased,) during and until the full end and term of twenty years from the 1st of May, 1852. On and prior to that day,'in the year 1852, such lessees entered into and upon said premises, and were possessed thereof, and continued to use and occupy the same until the death of Robert L. Stevens, in111856. He left a will, which was duly proved, on which letters testamentary under the same were duly issued to the plaintiff Edwin A. Stevens, the executor herein named; after such death the said Edwin A. and John C. Stevens continued in the possession, use and occupancy of such premises until the death of John 0. Stevens, in 1858. He left a last will and' testament, duly proved, on which letters testamentary were duly issued to the plaintiffs,

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Cambridge Livingston, Bichard Conover and Edwin A. Stevens, the executors therein named. After the death of John C. Stevens the plaintiffs entered upon, and have ever since continued in the possession, use and occupancy of such premises, and have ever since held and enjoyed the same. Such premises consist of a pier, wharf and bulkhead extending into the North or Hudson river, from" the westerly side of West street, near the foot of Barclay street in said city of New York, known as pier No. 25, North river, marked on the “Atlas of New York Harbor, made under the direction of the Harbor Commission,” with the number 24. At all times since the execution of such indenture of lease, such pier, wharf and bulkhead have been in the actual possession and occupancy of the plaintiffs, or of the plaintiff Edwin A. Stevens, and the said John C. and Bobert L. Stevens, or the survivor of them, as tenants of Anderson, and such water right, pier, wharf and bulkhead, used by them for a ferry landing, and the accommodation of steamboats and other vessels, which required wharf privileges thereat and came to and made fast to the same and to the sides thereof. About the second of January, 1852, by a resolution of the board of aldermen, adopted on the. 30th, and by the board of assistant aldermen on the 31st, day of December, 1851, and approved by the mayor on the 2d day of January, 1852, the mayor, &c. of the city of New York, granted to Edwin A". Stevens, Bobert L. Stevens and John C. Stevens, the exclusive use of pier No. 25, North river, at the foot of Barclay street (being the premises before mentioned,) with the privilege óf piling and bridging on the south side thereof, so as to make the same about sixty-six feet in width, including the pier, and required that upon the completion of such bridging the ferry float, rack and "jfixtures should be removed from their present location near West street to the outer side of said pier or platform, and gave the privilege of erecting suitable accommodations on such pier or platform

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for the transaction of their ferry .business, not to be brought within seventy-five feet of the westerly line of West street, or more than one story in height, except upon the front, where they might be two, to continue during the pleasure of the common council, under the direction of the street commissioner. The grantees complied with all the conditions and requirements of such grant, expended large sums of money on such premises in the construction of ferry bridges, • racks and buildings for the accommodation of their ferry business. The plaintiffs have ever since continued to use, occupy and enjoy such pier, and its rents, issues and profits, including the wharf on its northerly side, and the advantages and emoluments accruing therefrom, being appurtenant to such premises, as the same were granted to Edwin A., John C. and Robert L. Stevens. That under and by virtue of such indenture of lease and the said resolution, and said letters testamentary, the plaintiffs are entitled to the sole and exclusive use of such' pier, bulkhead, wharf and premises, with the appurtenances, for the remainder of the term so granted, and to the wharfage accruing- therefrom, and from every part thereof. . On or about the 11th day of December, 1862,' the defendant, William 0. Rhine-lander, in order to deprive the plaintiffs of the use of such bulkhead, pier, wharf, and of the advantages and emoluments accruing therefrom, obtained a pretended permission or authority from the common council of. the city of New York to construct a pier .upon his property at the foot of Barclay street, Horth river, to extend from the present bulkhead on West street to the commissioners’ line of pier heads, and threatened to commence and immediately proceed with the construction of such a pier on the northerly side of, and in immediate proximity to the pier of the plaintiffs, and for that purpose to drive piles and fill in the ■ interstices thereof with solid filling, and erect and construct substantial and permanent wharfs, so close to the pier of the plaintiffs as to leave an intervening space of

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only five feet. Such construction would work irreparable injury to the plaintiffs, rendering their property useless and unavailable, depriving them of the wharfage and other advantages and emoluments growing and accruing out of their pier, besides suspending and breaking up the business of their ferry, running from such pier to Hoboken, in New Jersey. The complaint demanded as relief that the defendant, his agents and attorneys, and all persons acting for or under him in the premises should be forever enjoined and restrained from erecting or constructing any pier or other edifice or obstruction within one hundred feet from the northerly side of the pier and premises of the plaintiffs before mentioned, at the foot of Barclay street, and also for general relief.

The answer of the defendant denied that John Anderson, in the complaint named, in the year 1851, or at any other time, was seised in fee of the land, pier or premises mentioned therein, or had in relation thereto, any right or title beyond that to collect such wharfage as might arise from the bulkhead forming the westerly side of West street, in said city; and alleged that he had no knowledge or information sufficient to form a belief of the execution of the indenture of lease in said complaint alleged to have been executed by. Anderson to the E. A., John 0. and Robert L. Stevens, or its contents. He denied that such indenture, could operate as a grant of any thing more than the right to collect such wharfage as might arise from the bulkhead forming the westerly line of West street It further denied that there existed, or had at any time during the period in the complaint named, existen any pier at or upon the premises described therein, but averred and admitted that there had been constructed at such, place a platform or bridge, constructed, intended and authorized to be used as a ferry landing or for ferry purposes, and for no other. But such platform, or bridge, or ferry landing, was not a pier, or intended to be one for

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commercial or public purposes, or for any purpose whatever, or to be designated or used as such; nor was it a pier within the meaning and intention of the statutes of the state of New York, relative to piers in the city of New York. The defendant admitted that on or about the second day of January, 1852, the mayor, aldermen and commonalty of the city of New York, passed some resolution giving the use of such platform or ferry landing to the said plaintiff Stevens and his two brothers, since deceased, as in the complaint alleged, but denied that said resolution was correctly set forth in the complaint. The defendant averred that the same was given by the mayor, aldermen and commonalty, to the plaintiff and his brothers for ferry purposes only, and that the grantees in such resolution named, were thereby limited to the use of such premises for ferry purposes exclusively, and that by such resolution it was intended to limit the character of the premises, and to prevent their being used as a pier, but only as a ferry bridge or landing. The defendant denied that there was lawfully any wharf on the north side of such ferry, bridge or platform, or that the plaintiffs, or any other person or persons, had the right to use any part of such bridge or platform as a wharf or pier, orto receive or collect any wharfage, cranage or emoluments-therefrom, as from a wharf or pier; and they denied that any such right was ever - given to the plaintiffs, or to any other person or persons whatever, or that any such right is appurtenant to such premises. The defendant claimed that by the laws of the state of New York, the right and duty of authorizing the construction of wharfs and piers within the city of New York, belonged exclusively to the mayor, aldermen and commonalty of that city. That such mayor, &c. in common council convened, passed a resolution, which was approved by the mayor of.said city on the 19th of December, 1862, in the words and figures following, that is to say:

“Resolved, That permission be, and is hereby given to William 0. Rhinelander, surviving executor of William

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Rhinelander, deceased, to construct á pier upon his property, foot of Barclay street, North river, to extend from the present bulkhead on West' street, to the commissioners’ line of pier heads, as shown on the map thereof, annexed hereto, made by J. T. Ludlam, city surveyor, the same to be done under the direction of the street commissioner.” And that at the time of its adoption such mayor, aldermen and commonalty had given no permission, nor had they since given any permission to any person or persons to establish or build any pier, within one hundred feet on either side of the place, so designated therein for the construction of a pier by this defendant; and that in fact no pier did or does exist within one hundred feet on either side of the place so designated. That the accommodations and buildings erected upon the said platform or bridge, used by the plaintiffs for ferry purposes, and constructed under the direction, authority and limitation of the common council, were so constructed and erected, as not to prevent the construction of the pier intended by the common council to be erected and constructed, and as subsequently authorized to be erected • and constructed by this defendant, by such last mentioned resolution. The defendant denied that the pier authorized to be erected by such resolution of the common council," and which he averred he intended and had contracted to construct pursuant to such resolution, would in any manner interfere with the use_and enjoyments of the premises so granted to the plaintiffs, and held by them, for ferry purposes ; nor would the saíne in any manner interfere with such ferry, but on the contrary, the same would be a great benefit thereto, and of incalculable benefit and advantage to the plaintiffs.

The issues were tried before the chief justice, without a jury, by whom, in his decision, the following facts were substantially found:

1st. At all the times hereinafter mentioned, John Anderson, a lessor of the plaintiffs, was owner in fee of a piece

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of land with a bulkhead on the outside thereof, lying along the easterly edge of the Horth or Hudson river, at the foot of Barclay street in the city of NHew York; and the defendant was owner in fee of an adjoining piece of land and bulkhead lying along the same edge of the .same river, which pieces of land were separated by a dividing line running parallel to the southerly side of Barclay street, at a distance of twenty feet therefrom, which, if continued on the same course into the river, would have run obliquely across the body of the structure contemplated to be erected by the defendant, as charged in the complaint, leaving five hundred feet of the length thereof to the southward of such line. But such line extended from that bulkhead, at and from the point of its intersection therewith, (into theHorth river,) at right angles to it, or parallel with the piers near said structure at the time existing, would fall wholly south of said structure. .

2d. The plaintiffs and defendant were respectively the owners of the premises described in the two grants from the corporation of the city of New York, one to ,the rector and inhabitants of the city, &c. in communion, &e. and the other to the governor of the college; recorded respectively in a book of city grants. The plaintiffs’ title being derived under the former, the defendants’ under the latter grant.

3d. From the year 1829 to the year 1852, a structure between thirty and forty feet wide, of a kind now known as pile piers, consisting of piles driven into the soil under water in rows, with intermediate spaces covered by a continuous horizontal platform or flooring of planking, fastened to and covering the upper ends of such piles, projected about ninety feet into such Horth or Hudson river, and and, stood adjoining and in front of the portion of the bulkhead before mentioned as belonging to the defendant; which structure was during all that time used as a ferry .landing by Messrs. Eobert L., John C.- & Edwin A. Stevens; who during, all that time conducted a ferry, and ran ferry

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boats carrying passengers and freight between such landing and Hoboken, on the opposite shore of such river in the state of New Jersey, and received wharfage from the use of the northerly side of such structure for mooring vessels along side thereof. The same persons also accepted from the defendant a lease of such bulkhead, platform and premises in June, 1836, and held the same thereunder.

4th. In the year 1829 another structure was erected in such river by the same Messrs. Stevens, in front of a portion of the land and bulkhead so belonging to Anderson, adjoining that of the defendant, and also the ferry landing mentioned in the last finding, in order to support the rack of such ferry of a like kind with that mentioned in such finding and similarly constructed; which structure projected three hundred feet into such river, and was covered along its northerly side by such ferry rack, so as to prevent any use thereof as a wharf or place to which to fasten vessels, but its southerly side was used exclusively as a landing place from the year 1829 to the year 1852, for steamboats run by the same Messrs. Stevens, to cany passengers and frieght between New York and Albany.

5th. In December, 1851, Anderson, by lease under seal demised to the same Messrs. Stevens, for the term of twenty years from the first of May following, “ a pier and bulkhead at the foot of Barclay street, in said city city of New York, belonging to him, being in length along the west side of West street, eighty-six feet eight inches, more or less, together with the full and uninterrupted use and occupation of his water right, as fully as he could have enjoyed the same, if it had not been executed.” At the date of such lease, such two last mentioned structures were standing in front of the bulkhead therein mentioned, at the foot of Barclay street.

6th. The structure mentioned in such fourth finding was erected without any authority from the mayor, aldermen and commonalty of the city of New York, or other author

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ity from any corporation, public body, officer or person, except that (if any) derived from such before lease of such bulkhead and land from Anderson.

7th. The mayor, aldermen and commonalty of the city of New York, at the following dates, adopted the following resolutions:

In the year 1845, one granting “ the exclusive use of the pier at the foot of Barclay street,” “to Messrs. John C. Stevens and Robert L. Stevens, for the occupation of such steamboats plying on the Hudson river, as they should permit to occupy the same, for the period of two years from the first of May ” previous.

In January, 1852, one granting the exclusive use- of pier No. 25, North river, at the foot of Barclay street, to Messrs. J. C., R. L. & E. A. Stevens, for ferry purposes, with the privilege of piling and bridging on the south side thereof, so as to make the same about sixty-six feet in width including the pier, and requiring them, “ upon the completion of such bridging to remove the ferry float, rack and fixtures “ from their present location near West street, to the outer end of said pier and platform,” upon which pier or platform they should have the privilege of erecting suitable accommodations for the transaction of their ferry business, * * * * not to be brought within seventy-five feet of the westerly line of West street, nor to be more than one story in height, except upon the front, which might be two,” to “ continue during the pleasure of the common council, under the direction of the street commissioner.”

In December, 1862, one granting “ permission to the defendant, as surviving executor of William Rhinelander, deceased, to construct a pier upon his property at the foot of Barclay street, North river, to extend from the present bulkhead on West street, to the commissioners’ line of pier-heads as shown on a map thereof annexed thereto, * * tobe done under the direction of the street commisssoner.”

8th. The resolution so passed in 1852, was adopted after the

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presentation of a petition by Messrs. Stevens, to the mayor, aldermen and commonalty, its reference to the committee of wharves, piers and slips, a report of such committee, recommending the passage of such resolution in the form in which it was adopted. That petition set forth “ that the street opposite • the Hoboken ferry, for want of sufficient width, is so often entirely blocked up, as to seriously incommode all who have business at Washington market, as well as those who wish to cross the ferry. It is often twenty times a day impassable for foot passengers, carts or carriages, whereby the lessees as well as the public are very seriously injured,” and therefore requested such mayor, &c. to “ grant them the exclusive use of their pier and bulkhead, south of, and immediately adjoining their present location, with the privilege of so extending and widening such pier as should be best adapted to the improvement of the ferry and the accommodation of the public, with permission to cover over the whole or such portion of it as they may deem most advantageous, as' well to the public and themselves.”

The committee on wharves, piers and slips, to whom such petition was referred, reported that they had had the petitioners before them, and understood from them that it was their wish to remove the float and ferry rack now immediately joining West street, to the outer end of the pier so widenéd, and set back their buildings or offices from the street, at least seventy-five feet, and that all their arrangements and occupation of the pier and platform should be for ferry purposes,” that the “crowded state of the street in the vicinity of the market, and the accommodation of passengers crossing the ferry, rendered it necessary that a radical alteration should be made of- the present arrangements, and they approved of the change suggested and petitioned for by the Messrs. Stevens,- and they presented the resolution” before mentioned. The resolution, passed in 1862, was adopted after the presentation by the defendant to the common council of the city of New York,

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as the owner of the water front at ■ the foot of Barclay streét, North river,- by virtue of a grant from the city of New York, dated 16th August, 1770, of a petition soliciting permission for the construction of a pier thereat, stating therein that the proposed improvement would be very beneficial to the city, afford additional accommodation to shipping, and yield increased facilities for commercial purposes generally.

9th. Immediately after the passage of such resolution, in January, 1852, an addition to the structure before mentioned, built by Messrs. Stevens, was made by them of the same kind, ferry houses and other accommodations for their ferry were erected by them upon such addition, a landing place made at the end of such enlarged structure, with ferry racks and floats attached thereto, and fences erected from such ferry house upon such structure along its outer line to the bulkhead from which it projected, and has since continued to be used by them for the purposes of such ferry and also on its northerly side as a landing, place for steamboats from Newark, New Brunswick and South Amboy; and the plaintiffs derived emolument from the use of part of such enlarged structure by the moorage at the same of such steamboats. Ho other action was had, resolution passed, or authority given for such structure, or its use by the said mayor, aldermen and commonalty, except such resolution of January, 1852.

10th. At the- time of the commencement of this action, and after the passage of such resolution of December, 1862, the defendant commenced erecting, by authority thereof, a pier in front of his premises, as therein authorized; which pier, when erected, would be at a distance of five feet from the northerly side of the said structure of the plaintiffs, and would have the effect of requiring additional care on the part of the plaintiffs and their employees in prop'elling, directing and. managing their ferry boats, when entering within the space between their ferry racks, and approach

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ing their ferry landing at the foot of Barclay street, and also of increasing the distance to be traversed by each boat employed upon such ferry in making its trip from Hoboken to New York, and thereby prolonging the time of such trip, and increasing its expense, but in no otherwise interfering with the running of such ferry or the emoluments thereof.

11th. The proposed pier of the defendant would prevent access by water to the northerly side of the structure so owned by the plaintiffs, of any vessel over five feet in width.

12th. Since the year 1829, most of the structures built adjoining the shores of the East and Hudson rivers at the city of New York, and projecting into such rivers, to be used as wharves, had been constructed in the same manner as that of the plaintiffs, and especially three of those in the East river, designated respectively by the numbers two, three and four, on the ma,p filed by the commissioners-appointed by virtue of the statute of March 30th, 1855, “ for the preservation of the Harbor of New York from encroachments, and to prevent obstructions to the necessary navigation thereof,” of April 17th, 1857, for “ establishing bulkhead and pier lines for the port of New York,” and the structure proposed by the defendant to be erected, had been begun in a similar manner, and was intended to be completed in the like way.

. From the facts so found and whatever others may appear by such pleadings and evidence, the chief justice concluded ' as matters of law:

1st. That the structure mentioned in the fourth fact and found by him referred to in the resolution of the corporation of the city of New York, passed in January, 1852, as “Pier No. 25, North river, at the foot of Barclay street,” was not, when built, nor at any time before the passage of such resolution, a “ pier ” within the meaning of any of the statutes of the state of New York, authorizing the erection

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and construction of piers in the land under water adjacent to the city of New York, belonging to the state of New York.

2d. The grant by such corporation of the city of New York, contained in the resolution passed in January, 1852, to the plaintiffs, and those under whom they claim, of the privilege of an exclusive mode of occupying and using the structure authorized by such resolution, was capable of being separated in contemplation of law, from the grant therein of authority to build such structure, and the validity of the latter was not affected by such first grant being contained in the same resolution, or the prospective dedication thereby, of a pier not in existence and only authorized thereby, to be built, to an unauthorized use; and that such latter grant was therefore a lawful exercise of authority.

3d. That whether such structure, when completed, did or not comply with the requisitions of such resolution in regard to its materials or mode of construction, and therefore was or not, authorized thereby, it became and was ratified as a compliance therewith by the statute of April 17th, 1857, respecting the bulkhead and pier lines for the port of New York," and would be a pier within the meaning of said act, if built after the same went into effect.

4th. That the corporation of the city-of New York had no legal right to authorize the exclusive employment, occupation or usé of any piers, or the moorage ground" adjacent thereto, built upon land under water belonging to the state, by virtue of permission or authority merely granted to or exercised by such corporation, (under or by virtue of any statute of the state) to construct, such piers.

5th. That the defendant ought not to be enjoined from proceeding to erect his pier, and the plaintiffs are not entitled to any relief or judgment against the defendant upon the facts stated in the complaint or proved on the trial, whether specifically demanded in such complaint or not.

6th. That the complaint ought to be dismissed with costs.

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The following opinion was given by the chief justice, who tried the cause:

Assuming that not only the plaintiffs’ wharfage, derived from mooring vessels to part of their structure, will be taken away by the structure contemplated by the defendant; but that the latter will interfere with the ready access to the former, of ferry boats belonging to the plaintiff; the justification of the defendant’s right to erect such a structure, depends altogether on the power of the corporation of the city of New York, to authorize the defendant to build such structure while that of the plaintiffs is standing.

That power as derived from various city charters and from statute prior to 1857, so far as it extends to authorizing the construction innavigable waters adjacent to the main shore, of moles or jetties (commonly termed “ piers ”) projecting from such shore but connected therewith, beyond the line of the land granted to such city by the state or otherwise, is -claimed to be limited by the provisions of the statute of this state, passed in April,' 1857, entitled “ An act to establish bulkhead and pier lines for the port of New York,” (N. Y. Sess. Laws, 1857, ch. 763,) and an act amendatory thereof. (See Sess. L. 1860, ch. 522.) Both structures would, when completed, extend, as is conceded, beyond the boundary of land owned by that city, and trespass upon land owned by the state; either of them, therefore, unless its erection was warranted by law, would be a purpresture as regards the state and a nuisance as- regards the public. Other circumstances, however, may control the right of the defendant to interfere with the right of the plaintiffs to constant, easy and uninterrupted access to their own structure for ferry purposes; even if the former had a right to build a pier so near, as to render the latter structure less convenient for such. purposes; which if necessary, will be considered hereafter.

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The defendant’s structure, it is admitted, would be a pier within the meaning of all the statutes, in relation to such structures. But building it, is claimed by the plaintiffs to be a violation of the- statute of 1857, already' referred to (ubi sup.) because it is within one hundred feet of their structure, claimed by them to be also a pier. The defendant, on the other hand, denies that such latter structure was such a pier as the city corporation had a right to authorize to be built, when it was built; because the use of, at least, a considerable part of it, was limited by the resolution of the corporation which authorized its erection, to landing passengers and freight from ferry boats, and an occupation by ferry houses, to the exclusion of the public from mooring vessels thereat, and from using it for all the purposes for which a public pier may be used. It, therefore, becomes necessary to look into the terms of such resolution. That resolution, (adopted in December, 1857,) authorized the plaintiffe or those under whom they claim, to widen a structure then existing in the same place as the present, only to the breadth of sixty-six feet, by piling and bridging on its' south side. But it accompanied such authority with a grant of the exclusive use of such enlarged structure for ferry purposes; to that end apparently directing the removal of a ferry float, rack and other fixtures, then located near West street, to the end of such new structure, and giving the grantees the privilege of placing upon it buildings of a specified kind for transacting ferry business thereat; to be under the control of the street commissioner, and held at the pleasure of the corporation. The plaintiffs erected and have since used such structure in the mode designated by such resolution, for ferry purposes.

The questions which arise in this case appear to be three:

1st. Whether the structure of the plaintiffs was built in the manner in which moles or jetties for mooring vessels thereat are required by the statutes of this state.

2d. Whether the grant of authority to erect it, was

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rendered void by being accompanied by a devotion of part or all of it exclusively to ferry or private purposes.

Lastly. Whether if it be such a pier as was contemplated by the statutes of this state empowering the corporation of New York to authorize the construction of such structures on land of the state outside of that owned by themselves, the statute of 1857 precluded such corporation from authorizing the building of another pier within one hundred feet from it.

As to the first question. The plaintiffs structure is not composed of cribs filled with stone and sunk at certain intervals, with bridges across and over such intervals; but is composed of rows of piles driven into the soil under water, at certain intervals, braced together by beams of timber bolted thereto, and covered with a floor or planking, being of the kind known as a “ pile pier.” It was suggested, perhaps, rather than urged, that such a structure was not authorized to be built on the land owned by the state, because it did not consist of piers with bridges connecting them, allowing a flow of water through the opening to carry away impurities. Whether such structures answer the same purpose does not appear; the system of building them, which was begun about 1830, appears to have been since generally adopted, perhaps with more regard to the interests of the builders than the health of the city.

The earliest use of the term “piers” in the legislation of this state, in regard to erections in the harbor of New York for mooring vessels, is to be found in a petition of the common council of the city of New York to the legislature in the year 1798, and the statute passed in pursuance thereof. (Valentine’s Collection of Laws relating to the city of New York, 1286. 2 Hoffm. on Est. and R. of city of New York, 62.) The term is not used in any colonial charter of the city, although the terms docks, slips, (or small docks,) bridges and keys are. (Valen. Coll. &c. pp. 194-251.) Nolis it to be found either in the colonial act of October, 1691

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(1 Sk. 8,) a subsequent state statute, which is a transcript thereof passed in April, 1787,. (1 Greenl. 441,) or a reenactment of such statute in April, 1801, (2 Webst. 127, §§ 1, 2,) all of which relate to such structures. In the petition of the common council just referred to, they state that they had adopted a plan to build two permanent exterior streets and extend piers with bridges. The preamble to the act passed in pursuance of such petition, recites its contents, and the conduciveness of such streets and piers with bridges, (sufficient to accommodate sea going vessels, and so constructed as to admit the currents of the rivers at ebb and flood to wash away impurities) to the health of the city, as well as the safety of vessels employed in its commerce.

The fifth section of such statute, (Valentine’s Collect. 1288,) authorized the sinking of piers in front of the intended exterior streets or whaves “ to be connected therewith by bridges.” Its seventh section forbade the erection of any structure outside of such streets, except such piers and bridges. Similar language was used in the subsequent statute of April, 1801, (2 Webst. 128, §§ 7,10,) containing the same provisions, and in one passed in April, 1806, (1 Webst. & Sk. 514,) as well as in the act “ to reduce several laws relating particularly to the city of New York, into one act,” passed in 1813, (2 R. S. 1813, ch. 86, §§ 224 to 232, inclusive.) Down to the year 1813, all the statutes of this state on the subject appear to employ the term “piers” in its proper sense as separate masses of masonry, intended to sustain platforms or arches which connecting them with each other, designated as “bridges” in such statutes; and the object appears by the statute of 1798, already referred to, to have been to allow the tide to flow through the opening, to wash away impurities. But, four acts passed respectively in 1830, 1835, 1852 and 1855, recognize the term “pier ” as applicable to the whole structure. (Laws of 1830, ch. 222. Id. 1835, ch. 122. Id. 1852, ch. 266. Id. 1855, ch. 121.) At the first of those dates, the use of “pilepiers” was known. The statute of

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1857 already referred to appropriates, by its first section, a certain space of land under water for piers “ on piles ” as well as “blocks and bridgesthereby sanctioning the building of both kinds of structures. The plaintiffs’ structure, I am therefore inclined to think, was such an one as the corporation had power to authorize them to build, and that it was a pier within the meaning of the statutes already referred to.

The second question, whether the grant of the power to the plaintiffs to erect their pier was rendered void by being accompanied by the appropriation of it to ferry purposes, is somewhat more doubtful. If such provisions in the same resolution are inseparable, I am inclined to think the whole would be void as an excess of power. I have not been able to find, nor have I been directed to, any authority to show that the corporation of New York can appropriate a pier built upon land not owned by them to ferry purposes exclusively. The mere right to build a pier, without acquiring a title to the land on which it is to stand, of course only gives the incorporeal hereditament of wharfage to the builders; and no right in the soil passes by the grant of the former. (Mayor, &c. v. Scott, 1 Cain. 543 .) The case of Taylor v. Mayor, (4 E. D. Smith, 559,) is against any such right of exclusive appropriation. The-power of merely regulating or licensing ferries, which is not property, would not give such right, (Benson v. Mayor, &c. 10 Barb. 223 ,) nor even the ownership of a ferry. (Peter v. Kendal, 6 Barn, & Cress. 703. 3 Kent's Com. 420, note d. Cooper v. Smith, 9 Serg. R. 26. Chambers v. Ferry 1 Yates R. 167.) Ferry privileges cannot be used so as to interfere with vested wharf rights. (Murray v. Sharp, 1 Bosw. 539 .) It was held, it is true, in the case of The Mayor, &c. v. Rice, (4 E. D. Smith, 604,) that the city corporation might appropriate the use of certain wharves, piers and slips, to vessels of a certain class or kind exclusively; but'it was also held therein that it could not confer on an individual by grant such exclusive use, nor could they divest themselves of

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their delegated legislative power of regulating such use. Even a permanent use by a floating structure has been held to be unlawful. (Penniman .; New York Balance Dock Company, 13 How. Pr. 40 . Hecker v. same, Id. 549.) From its earliest history the corporation of Eew York sought for' grants of land to enable it to establish exclusive ferries, (1 Hoffm. on Est. and R., of Cor. of New York, 277, 278,) and its expenditures of money, for the purpose was made in 1732, in a colonial statute, the ground of such a grant. (2 Hoffm. Tr. 151, 152.) The general statute of 1813, already cited, (2 R. S. 1813,) allowed the corporation to reserve certain parts of water adjacent to the city for vessels of a certain kind; and another statute, passed in 1858, allowed the exclusive use of wharves to steamboats engaged in a certain business. Thus showing the understanding that an express legislative grant was deemed necessary to sanction an exclusive use of a public wharf, either by a ferry or any other occupation of' it.

But ;I do not see that the resolution in question makes the building of the wharf or its use dependent on each other. The plaintiff's might have built their wharf and not established their ferry at all, and they would still have had a right to the wharfage. I am inclined to think, therefore, that the plaintiffs’ pier was lawfully erected under the grant from the corporation.

The structure of the plaintiffs being lawfully erected, its exclusive use by them could not make it unlawful; the remedy for such exclusion of others must be sought in some other way than abating it as a nuisance. The-question, therefore, still remains whether the defendant’s structure is lawfully authorized to be built at the place where he has been authorized to build it.

The early statutes of this state do not seem to impose, any restriction on the exercise of the discretion of the corporation as to the place, time of erection or size of piers. The fifth section of the act of' 1798, already referred to, gives them full discretion to order piers to be sunk and

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completed at any distances, in any manner, and'at any time. The subsequent statutes of 1801, 1806 and 1813, already referred to, leave such power equally uncontrolled. Indeed, there seems to have been nothing to prevent the corporation from filling up the whole outside of the city solidly with piers, successively built, unless it could have been prevented as an abuse of power. The statute of 1857, already referred to, does impose some restriction upon building future piers, but does not refer to any already existing, certainly not in express terms.

It does not prohibit the building of a pier at less than a certain specified distance from one previously existing; but only of “piers ” (in the plural) with less than a certain water space between.

The prescribed width of the openings in the sea wall, authorized by.its first section to be built on the exterior pier line thereby established, is the same as that of such spaces, and was undoubtedly, intended to correspond therewith. The main evil intended to be guarded against by such statute was the encroachment by bulkheads solidly filled and piers projected. It only incidentally regulated the width of and distances between piers afterwards tó be built. There may have been piers then existing more than seventy feet wide, and nearer than one hundred feet to each other; yet, no attempt is made in such statute or any subsequent one to remove any of them or reduce their size; a statute was, however, passed in 1860, authorizing the removal of any part of a pier built after 1857, projecting beyond the established line, although silent as to any other violation of such law.

After a careful consideration of such statute of 1857, I cannot come to any other conclusion, than that it designedly ignored the existence of any previously built piers, and was intended to regulate exclusively those afterwards to be built; its principal if not sole purpose being to prevent a projection into the river of too many new obstructions to navigation and currents. It follows, therefore, that the

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city corporation had power to grant authority to the defendant to build the pier in question, notwithstanding its proximity to that of the plaintiffs.

Of course the right of the plaintiffs to ferry privileges would not deprive the defendant of the right of building his pier, although it might interfere with the facility of access of the ferry boats of the plaintiff to their own structure. In Murray v. Sharp, ( 1 Bosw. 539 ,) it was held, that ferry privileges could not interfere with vested rights of wharfage, of a pier already built; on a similar principle, they ought not to be allowed to interfere with vested powers and rights to build a pier and receive its wharfage, whenever authorized by the city corporation as the agent of the state.

I cannot see, therefore, any ground for maintaining the injunction heretofore granted, and the complaint should therefore be dismissed with costs.

From the judgment entered at special term, upon such decision the plaintiffs appealed.

L. B. Woodruff, and O. F. Sanford, for the appellants.

H. H. Anderson and J. S. Bosworth, for the respondent.

This is a controversy concerning a water right in front of Barclay street, on the Hudson river.

The plaintiffs claim that by virtue of a resolution, passed by the common council in 1845, and by right of adverse possession, they are entitled to use the front of a certain pier or wharf, at the foot of the before mentioned street. The defendant denies the rights claimed by the plaintiffs, and alleges that the property, franchises and rights accruing therefrom, belong to him exclusively.

The plaintiffs and the defendant respectively own the upland in front of Barclay street. Drawing a line through the middle of Barclay street down to the bulkhead or water mark, the plaintiffs owning that on the south side of that

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line, and the defendant owning that on the north of that line.

In 1829 the plaintiffs, without authority from the common council, or from any other source, erected on their own water front a landing for a ferry between this city and Hoboken, which has been so used, with certain alterations, ever since; and for the purpose of making this landing for their ferry, they erected, in front of their own land, what may be termed a bridge or wharf. This bridge or wharf had attached to it a rack, made of piles, for the purpose of receiving and guiding the ferry boats up to the bridge or landing, and to support that rack a platform of planking was laid and fastened on its outer and northern side. This platform was a few feet wide in some places, but was entirely in front of the plaintiffs’ upland.

By virtue of a lease, dated 16th June, 1836, from the defendant to the plaintiffs, the latter hired the premises fronting on the northerly half of Barclay street, beginning at the center thereof, and running northerly sixty feet, for the term of seventeen years. The plaintiffs were then using the north side of this ferry bridge or pier as a landing place for steamboats plying on the North river.

In December, 1862, after the above mentioned lease had expired, the defendant obtained permission from the common council of the city of New York, to build a dock or pier, whereof the southerly line would touch, in some places, the plaintiffs’ wharf or bridge, which would, as a matter of course, nearly destroy the use of their ferry bridge or pier for any other purpose than as a ferry landing. To prevent the erection of this dock by the defendant, this action is brought. So that the principal question to be disposed of by the court is, whether the erection of this dock or wharf by the defendant on his own land under water, is contrary to law, and is an infringement upon, and injurious to, the rights and interests of the plaintiffs.

I am of opinion it is not contrary to law, and does not interfere with the rights of the plaintiffs.

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The first question which I shall dispose of is, whether this ferry structure was a pier, recognized as such, and built according to law, or only a bridge and ferry rack, built and used solely for ferry purposes; because, if it were only a ferry rack and bridge, and not designed as a pier, and had none of the essentials of a pier, it ends this controversy.

It would seem,' from all the evidence before the court, that the plaintiffs, for the purpose of increasing the value of their property in Hoboken, started a ferry from that side of the river to this city, and this they did, without permission from the corporate authorities to so locate themselves at the foot of Barclay street; and they built this ferry slip and bridge in a manner only suited for ferry purposes, by driving piles in the water and mud, and then flooring it over, so as to get access to their ferry boats. •

At the time this dock or bridge was built, the law required piers to be built with cribs filled with stone, or of solid masonry) [Laws of 1813, §§ 224-5,) and this was required' to be done for the safety of shipping in our harbor. I cannot doubt but that the reason why permission was not obtained by the Stevenses to build such a pier, was, that the land and water, upon which they were about erecting this bridge and rack, was not owned by them; and that they did not intend it as a permanent pier, but simply to use it temporarily for ferry purposes.

Moreover, it was not in a neighborhood where shipping usually lay at that time, and, consequently, was not intended for its use.

Indeed, in its construction, it had none of the requirements of a pier, if it were intended as such, and it;would be a misnomer to give it that name. The mere fact of its being laid down on the numerous maps of the city’s’wharves and piers, and designated by a surveyor or tax officer, or even the common council, a pier, does not necessarily make it so.

Whether a structure be a pier or not, depends upon its location,, its physical character, and its adaptation to the

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purposes for which piers are used. This structure had none of these qualifications. -Moreover, all the permissions given by the city authorities to the plaintiffs, or those whom they represent, were connected with this ferry of the plaintiffs.

I hold, therefore, that it was not a pier, within the meaning and sense of the law. On the contrary, the court would be - justified in holding, under the authority of Dygert v. Schenck, ( 23 Wend. 446 ;) Mills v. Hall, (9 id. 315;) and the People v. Vanderbilt, ( 28 N. Y. Rep. 396 ,) this structure to be a nuisance, and, being a public one, no rights can be conferred upon its builders and maintainers, as against the people.

For the purpose of establishing, in the mind of the court, this structure to be a pier, under the act of 1857, (N. Y. Sess. Laws, 1857, ch. 563,) wherein it declares that piers shall not be built at less than one hundred feet distance apart, the evidence should, in all respects, be clear and indisputable. For if the theory propounded be true, that the structure was a pier, within the -meaning of that act, and that the defendant had no right to build this dock, it would deprive him of his property and franchises without compensation or consideration.

The object of building substantial piers for the purpose of accommodating the shipping of this port, is not only to have ample accommodation to our commerce, but to have the piers themselves strong, so that in storms and unusual tides, vessels of large tonnage can be moored and fastened in safety to the piers, so as not to jostle and injure each other, or have their structures or the valuable cargoes they might contain, injured, and also to have substantial wharves whereon to land and keep their bulky, heavy and valuable cargoes. It cannot be urged, for a moment, that the structure in question had any single quality required by law, and essential in the construction of such piers.

The next question to be disposed of is the alleged offer to prove adverse possession in the plaintiffs.

Offers to prove are, in themselves, always objectionable..

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Questions should he put separately, and the court allowed a fair opportunity, without confusion, to dispose of such questions.

In this case the importance of such a rule is clearly demonstrated. An offer was made to show, “ that for thirty years the plaintiffs had been in possession. In that connection, that they had paid taxes, from year to year, and that those were the maps from which the taxes were assessed,” and I hold the offer was properly rejected.

Now, although the first part or clause of the offer might, under certain circumstances, have been admissible, yet, coupled as it was with clearly inadmisible testimony, (viz. paying taxes from year,) it was properly ruled out, and the fact of its being so coupled was, in itself, enough to justify the learned chief justice in excluding the offer.

Besides, the plaintiffs were not denied the right to prove possession in them for any length of time. On the contrary, the learned chief justice gave them every opportunity to show all the time they were in possession, and it was only when the proposition was coupled with a clearly inadmissible offer, that he ruled it out. Of course the court can clearly perceive the intent of the offer; it was, no doubt, propounded in this form, and in this connection, to enable .an exception to he taken.

The rule, however, is clear in such cases, and the learned chief justice applied it promptly and correctly.

Not only were the plaintiffs allowed to prove adverse possession, if it were in their power, in which, however, they entirely failed, but they were permitted to introduce and read in evidence the official record of payment of taxes and assessments, which was clearly inadmissible.

The payment of taxes and assessments can be made with-, out adverse possession.

There may be actual possession and payment of taxes, where there is no pretense of adverse possession, as in the case of lessor and lessee, where the lessee covenants to pay taxes, and which, by the way, was the case in this instance.

Dissent

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The only adverse possession that could be possibly raised, would be an adverse possession against the people of the state, and that cannot be raised in this case, because the use and occupation which the plaintiffs claim, instead of being adverse, was by permission of the corporation, and was to continue only during its pleasure.

A possession to be adverse must be a claim to the entire title. (Jackson v. Johnson, 5 Cowen, 74, 92. Jackson v. Hill, 5 Wend. 532 . Thompson v. The Mayor, &c. 11 N. Y. Rep. 115 .)

The cases of Renwick v. Morris, ( 7 Hill, 575 ;) Mills v. Hall, ( 9 Wend. 315 ;) Dygert v. Schenck, (23 id. 448 ;) Brown v. Cayuga and Susquehanna R. R. Co. ( 12 N. Y. Rep. 486 ;) Vedder v. Vedder, ( 1 Denio, 261 ;) The People v. Arnold, (4 Comst. 512,) cited by the plaintiffs* counsel, show that our statute had reference to lands, in the ordinary meaning of the word, to be used exclusively by persons, and that it has no reference to the bed of navigable rivers or streams, where the tide ebbs and flows, the highway of nations, and which cannot be occupied but by legislative authority.

There is nothing in the exceptions to findings of fact.

The judgment below should be affirmed, with costs.

The plaintiffs’ right to an injunction in this case, is contested on three grounds: 1st. That the structure erected by them, was and is not a “ pier ” within the meaning of any of the statutes of this state. 2d. That such structure was erected without lawful authority for any purpose, other than as a ferry landing; and 3d. That the limitations contained in the act of 1857, (Sess. Laws of 1857, ch. 763,) have no application to such structure, and do not inhibit the contemplated erection of. the defendants’ pier. The first two objections were, to my mind, satisfactorily disposed of at the special term; .but I cannot concur in the views of the learned chief justice in respect to the third objection.

The second section of the act of 1857, declares that it

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shall not be lawful * * * to erect any structure, exterior to the bulkhead line, except * * * piers which shall not exceed seventy feet in width respectively, with intervening water spaces of at least one hundred feet * * *.

The act of 1857, was'framed from recommendations made to the legislature by the commissioners appointed in 1855, for the' preservation of the harbor of New York from encroachments, and to preserve the necessary navigation thereof.

The preamble to the act, (Sess. Laws of 1855, ch. 121,) recites,.that “ whereas it is represented-to the legislature that the harbor of . New York has become much obstructed by the erection of piers, wharves, and bulkheads, and by other causes, and that grants of rights to occupy land under its waters have been made, and are liable to be made, without sufficient information of the extent of the injury that maybe inflicted by such occupation * * * ; with a view therefore, of obtaining the proper information to enable th.e, legislature to- control such erections, and prevent such injury.; ” it was enacted, that five commissioners be appointed to ascertain whether the navigation of the harbor was improperly obstructed, and whether any further extension of piers, &c. into the said harbor ought to be allowed; and whether any grants already made, for the filling up of any land under water of said harbor, would,, if executed, impair or obstruct- the necessary navigation of the harbor. The1 commissioners were directed to recommend to the legislature such provisions as they might deem necessary in respect to the size, position and extent of piers &c. within thé' exterior water lines, and the laying out and establishing of such piers, &c. and leaving open spaces between and under them, “ and in respect to any and every matter and thing, calculated to preserve forever the free navigation of said harbor.” The commissioners were required to submit with their report, - maps of the harbor, exhibiting the lines of the existing piers Sye. with such field notes, measurements and elucidations as they might deem necessary, “to a full

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exposition and understanding of the subject.” The report of the commissioners made in 1857, was accompanied by a map, which they had caused to be made from surveys and examinations of the harbor, upon which map the plaintiffs’ structure was designated by black lines drawn at right angles to the' bulkhead, extending into the river, and by the number “24.” Other structures, which are conceded to be “piers ” being above and below, and near the plaintiffs’ structure, were also designated on such map by similar lines, and by the numbers respectively 22, 23, 27, &c. and are in no way distinguishable upon the map from the plaintiffs’ structure.

Upon the commissioners’ recommendation the legislature established an exterior or pier head line, and provided for building a sea wall north of Seventeenth street, and appropriated the water space, between such exterior line and the bulkhead north of Seventeenth street, for piers on piles, or blocks and bridges, and wet basins; but no provision is made in the act for appropriating any of the water space, between such line and bulkhead south of or below Seventeenth street; from which it is to be assumed that the commissioners did not deem it necessary to recommend, or if they did recommend, the legislature did not deem it expedient or necessary to enact, any law in respect to piers, wharves, or bulkheads below Seventeenth street except the provision contained in the second section; and the probable reason is, that no legislation was deemed necessary, inasmuch as the water space below such street was in 1857, occupied by piers within the exception in the second section.

The object of the commission of 1855, and of the act of 1857, was to control erections in the harbor and to prevent injury thereto. The report and act embraced no other subjects, and comprehended no other purpose, and was confined to needed legislation. Hence, the first section relates to the construction of piers &c. north of Seventeenth street, making no reference. to piers below that point. But the second section is general, and it seems to me, must have

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a general application, as well to piers thereafter to be erected, as to such as were then in existence.

It shall not be lawful, that section declares, to erect any structure exterior to the bulkhead line except, &c. The language is prospective and relates to piers thereafter to be constructed, without regard or reference to location, and therefore as well below as above Seventeenth street. The limitation embraces all the waters of the port of Ee'w York, beyond the bulkhead line, and was enacted to establish the lines as well of existing piers, as of such as might thereafter be erected. A less comprehensive law would not have subserved the object of the legislature; and if no other effect is to be given to it, than such as is contended for by the defendant,, the commissioners would have reported and the legislature enacted to very little purpose. The whole water space between the bulkhead and the exterior line, below Seventeenth street, could, upon such construction, be filled in “ with earth, stone, or other solid material,” destroying the harbor; or piers could be erected without intervening water spaces of the required dimensions.

It was not intended to interfere with, regulate or restrict piers existing at the time of the passage of the act. The right to such piers had became vested in the owners, and such rights are never divested except by express words. (Butler v. Palmer, 1 Hill, 324 . Johnson v. Burrell, 2 id. 238.) On the contrary, the recognition by the legislature of- “ existing ” piers, and its omission to require their removal or alteration, furnishes satisfactory ground for believing that no legislation in respect to them, was deemed necessary. Eevertheless, the prohibition remains. Present piers are not to be disturbed; but does it follow, that others may be constructed without the required intervening water space ? If they can, then the purpose of preventing obstructions in the. harbor is defeated.

■ Suppose it should be declared unlawful to lay out streets except with intervening spaces of two hundred feet; will it be contended that streets may be opened between streets

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already opened leaving a less intervening space ? Or, if railroads were required to have a prescribed space between their tracks, will it be said, that they may construct another track between those already down, which would reduce the space below the limit ? Yet the erection of the defendant’s pier, would, by reducing the required intervening space between it and the existing pier of the plaintiffs • to less than six feet, be no greater perversion of the law.

The application of the second section of the act of 1857, to existing piers is in effect confirmed by the last clause of the second section of the act of 1860, (Sess. Laws, 1860, chap. 522,) which in express terms excepts piers, &c. built before the establishment of such exterior line. The construction of piers, bulkheads or other structures beyond such exterior line was unlawful by the act of 1857 ; but that act related to such only as might thereafter be extended. The act of 1860 made the maintaining of such structures unlawful. But to exempt existing piers from its operation, it excepted such as existed when the exterior line was established. It is clear that without the exception all piers would alike be subject to the provisions of the act. Hence, as a legislative interpretation, there being no exception in the act of 1857, it must be deemed to apply to all piers alike.

The construction which I claim for the act in question is sustained, upon principle, by the case of Wetmore v. Atlantic White Lead Company, ( 37 Barb. 70 .) In that case an act of the legislature had made it lawful for the owners of certain lands to erect, construct and maintain bulkheads or wharves on the lands under water in front of their lands, as far into the river as the permanent water line established by a previous act; and the question was whether structures erected prior to the act were embraced ; and it was held that the act, although prospective in terms, was intended to and did confirm to the owners of the shore and water front a title .to the lands under water, as far as such exterior line, or to the use of them for existing piers or bulkheads, so far as the

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state was concerned; and the argument was, that if the structures were removed they might, under the provisions of the act, he immediately and lawfully re-constructed.

Looking, therefore, at the intention of the law makers and the purpose they designed to subserve, and also to the statutes, to which I have referred, which may be regarded in pari materia, it must, I think, be conceded, that no pier or other structure can be erected in the waters of the port óf Hew York unless there can be left an intervening space of water between it and an adjacent pier or structure of the dimensions required by the act.

In the argument, I have assumed that the plaintiffs’ structure was a “ pier” within the meaning of the statute. To be so, it must be a pier dé jure as well as de facto, for the legislature cannot be presumed to recognize an unlawful structure.

The first or original structure erected by the plaintiffs in ■ 1829, was erected without any show of authority, upon Anderson’s land. In 1861, they leased from" Anderson, for a term of twenty years, the pier and bulkhead; which lease confirmed their title, to the franchise and property previously erected by them, and under which they have continued in uninterrupted possession. In 1845,, they obtained from the corporation a grant of the exclusive use of the pier, for a period of two years; and in 1852, a further grant of such exclusive use during the pleasure of the common council. Such last grant was' for “ ferry purposes,” with privilege of piling and bridging on the south side; • with permission to remove their ferry boats, rack - and' fixtures to the outer end of the pier and platform. The license or grant obtained in 1852, has not been revoked or annulled, and it is enough to say, that the plaintiffs’ right to such exclusive use, has repeatedly been reeognizéd and admitted by the-corporation, in maps and by the imposition of taxes, assessments and otherwise, amounting to an estoppel from disputing the plaintiffs’ title until there is some ' express -revocation of the grant. The question, however,

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does not rest upon the plaintiffs’ title, but upon the right of the defendant to construct his proposed pier. If the views I have expressed are correct, and the plaintiffs’ structure is a “pier” within the act óf 1857, then neither the corporation, even if in possession, nor any person claiming under it, could construct another pier, if the required intervening water space was thereby reduced or destroyed. • And this disposes of all questions relative to the alleged unauthorized or misuse of the plaintiffs’ pier, or its diversión by them from the “ferry purpose” to which the grant was confined. If it is a “pier,” the erection of another pier upon the defendant’s land would be equally in violation of the statute, whether the present structure was the property of the corporation or of the plaintiffs.

I have not found it necessary to examine the question of the plaintiffs’ title as strengthened by an adverse possession. Except as against the state their rights would seem to be vested. (Lansing v. Smith, 4 Wend. 21 . Fort Plain Bridge Co. v. Smith, 30 N. Y. Rep. 63 .) And until such rights are divested by- the state, or by the common council acting for the state, the plaintiffs cannot be disturbed in the enjoyment of the benefits and emoluments of their property. Nor, in my judgment, is the plaintiffs’ title involved farther than is necessary to give them a status to demand the relief they seek, the sole question being, whether another pier can be erected within one hundred feet of the structure in their possession.

My conclusions are first, that the plaintiffs’ pier was an existing pier at the time of the passage of the act of 1857, and that it was recognized by the commissioners in their report, and by the legislature in said act, as an “ existing ” pier, and that the provisions of said act, so far as they require an intervening water space of one hundred feet between piers, are applicable to such existing piers, and prohibit the erection of any pier, which shall reduce the space between it and any existing pier, to less than one hundred feet; and second, that the erection of the defendant’s pier will deprive the plaintiffs of some portion of their

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emoluments, producing an injury entitling them to the relief demanded in their complaint.

For these, reasons I think the judgment dismissing the complaint should be set aside and a new trial ordered, with costs to abide the event.

Judgment affirmed.

Cases cited

Benson v. Mayor 10 Barb. 223 N.Y. Sup. Ct. p. 303
Murray v. Sharp 1 Bosw. 539 N.Y. Super. Ct. 1857-07-11 p. 303, p. 306
Penniman v. New-York Balance Co. 13 How. Pr. 40 N.Y. Sup. Ct. p. 304
Jackson ex dem. Gillet v. Hill 5 Wend. 532 N.Y. Sup. Ct. p. 311
Mills v. Hall 9 Wend. 315 N.Y. Sup. Ct. p. 311
Wetmore v. Atlantic White Lead Co. 37 Barb. 70 N.Y. Gen. Term 1862-05-12 p. 315