Furman v. Mayor of New York

By the Court.

The decision of this cause depends on the construction to be given to the first and second sections of the act concerning streets, wharves, and piers, in the city of New York, passed April 3, 1798.

The first section, which is substantially the same as t]ie two hundred and twentieth section of the act to reduce several laws relating particularly to the city of New York, into one act,passed April 9, 1813 (2 R. L., p. 432), authorizes the Mayor, Aldermen, and Commonalty of Now York, to lay out, according to such plan as they should agree upon, streets or wharves, of the width of seventy feet in front, of those parts of the- city which adjoin to the Hudson and East rivers, and of such extent along those rivers respectively, as they may think proper, and that, as the buildirigs of the city should be further extended, it

The second section, which forms the two hundred and twenty-first section of the act of 1813, before referred to, is as follows : “ That the said streets or wharves shall be made and completed according to the said plan, by and at the expense of the proprietors of land adjoining, or nearest and opposite to the said streets or wharves, in proportion to the breadth of their several lots, by certain days to be for that purpose appointed by the said mayor, aldermen, and commonalty, and that the respective proprietors of such of the said lots as may not be adjoining the said streets or wharves, shall also fill up and level at their own expense, according to such plan, and by the said days respectively, the spaces lying and being between their said several lots, and the said streets and wharves, and shall, upon so filling up and levelling the same, be respectively entitled to and become the owners of the said intermediate spaces of ground in fee simple.”

Gabriel Furman, the ancestor of the plaintiffs, was in his lifetime the owner of the upland opposite to the premises, in relation to which the controversy in this suit has arisen, and also by grant from the mayor, aldermen, and commonalty, of the soil under water, extending from high water mark into the river one hundred and thirty feet, beyond which there had been no grant by them at this .particular point, until the grant to Titus, after the commencement of this suit.

Ib was contended by the plaintiffs who have succeeded to the rights of their ancestor, that inasmuch as they are the proprietors of the land nearest and opposite to that particular part of South street, which is the subject of controversy, on their completing such portion of the street, and filling up the intermediate spaces, they became, by force of the above recited section of the acts of 1798, the owners of the intermediate space in fee simple.

The words of the act, it was argued,, are very clear and explicit.

In the first place, the burden, it was said, of making that portion of the exterior street, lying in front of their respective

It was further insisted, secondly, that the persons on whom this burden is cast, are also clearly indicated by the act. They are the proprietors of the land adjoining the street to be made, or if there should be no proprietor, that is individual proprietor, immediately adjoining any portion of the street to be made, the burden is imposed on the proprietor of land nearest and opposite to the street; and lastly, it was very clear that such proprietors, on making the street, and filling up the intermediate spaces, became, as a matter of course, the owners of such spaces in fee simple. ■

It would make no difference, according to this construction, whether a proprietor of upland had taken out a grant of any part of the soil under water, or not; such proprietor, though his ownership should not extend beyond high-water mark, is as much subject to the duty imposed, and entitled to the benefit conferred by the act, as if he had taken out a grant extending to within a few feet of the street to be made, and such we understood to be the position taken by the learned counsel for the plaintiffs.

The argument is plausible, and, at the first blush, appears to be conclusive. It is, however, open to several objections.

I. It proceeds on the assumption that the corporation of the city, are not proprietors within the meaning of the act, of such parts of the land under water given them by their charter, as they had not granted to individuals. The king himself, or the government, from which the charter is derived, it was said, had no such property in the land under water, as would authorize a conveyance of it to any individual, to the exclusion of the riparian owner, and the grant in the charter, of the soil under water on the East and North rivers, extending into the river four hun

It is, however, we think, well settled, that by the common law the king is seized in fee of all the lands under .the navigable waters of his realm, and entitled to grant and convey them. He has the property tam aqua quam soli, and of all profits in the sea, and in all .navigable rivers. So the property-of the soil-in all rivers which have the flux and reflux of the sea, belongs to the king, and not the lord of the manor adjoining, without grant or prescription. But, by grant or prescription, a subject may have the interest in the water and soil of navigable rivers, as the city of London has the soil and the property of the Thames, by grant (Com. Digest, Tit. Navigation, A. B.). This right of soil is entirely distinct from, and subject to the right of the public to pass over the waters with ships : and the jus privatum does not prejudice the jus publicum wherewith public rivers or arms of the sea, are affected for public use. Such is the doctrine of Lord Hale, in his treatise, de Jure Maris, which has always been recognised, both in England and this country, as authority upon this subject, and such was held to be the law by the Supreme Court of -this State, in Rogers v. Jones ( 1 Wend. 237 ), the decision in that case being based upon the ownership by the king, of the soil under water, in an arm of the sea, and his right ,to convey the same.

If we examine the charter of the city of New York, we shall find that it does not purport merely to confer upon .the city corporation the powers of government, but gives to it an estate in fee in the soil under water. It “ gives, grants, ratifies, and confirms unto the mayor, aldermen, and commonalty, and to their successors for ever, all that space of ground and .so.rl under water,” describing it by metes and bounds with -the usual ImbendLum clause. (Kent’s Charter, § 38, p. 145, ed. 1851.) If this had been a conveyance to an individual, no question, we think, would ever have been raised as to whether these words were intended to vest in that individual the fee simple of .the soil; and we see no reason for applying -to them a different construction, because the grantee is a municipal corporation.

, It is not material, in this connection, to inquire into the .alleged right of the riparian owners, with regard to the soil ..under water, in front of their respective properties. It is not pretended that the plaintiffs are the absolute proprietors in fee ■.of such soil. The whole argument on this section proceeds on j;he ground that they are not, but that they are entitled to Recome such on1 performing certain specified acts. But if the ^defendants are such proprietors by virtue of this grant in their .charter, and have an estate in the lands of the same nature that an individual would have under a similar grant, then the foundation of the plaintiff’s argument, to wit, that the plaintiffs are proprietors of the lands nearest and opposite to the proposed street, altogether fails. The land of the defendants intervenes between the street and the plaintiffs’ land. The plantiffs do not, therefore, come within the act, and cannot be compelled to make the street nor to fill up the intermediate Space—and, of course, are not entitled to the fee of such intermediate space.

II. But there is another and more serious objection to the plaintiffs’ position. If his construction of the act be the true One, it is a most glaring violation of the rights both of the adjoining proprietors and of the corporation. It is unjust to the riparian proprietors, because it compels them, from the mere fact of their being riparian proprietors, to fill up the water lots and build a street or wharf at their own expense, and in default of their doing so, levies the expense by distress on their goods and chattels, and by sale of their real estate. If the government; or a municipal corporation by authority of the

But the act on this construction is equally unjust to the defendants. It takes away from them all the estate conveyed to them by their charter, of the soil under water, or at the best, allows them to hold it merely as trustees for the riparian owners, until the wharf should be made. Of course, they have no right to grant the soil to any person except the riparian owner, nor to receive any quit rents, nor to reserve any ground for the streets intermediate the line of the shore and the exterior wharf, nor to require, as a condition of their grants,, that such intermediate streets be built—and this is done without any release or surrender being suggested on the part of the defendants ; but by a simple act of power, this valuable property, derived from the sovereign authority and enjoyed by the defendants for upwards of a hundred years, is taken from them, and parcelled out to the various riparian proprietors, subject to certain incumbrances. It becomes us to pause, and be well assured of the correctness of such a construction of the act. It certainly is at war with all our ideas of law and justice,, and indicates on the part of the legislature an utter disregard of those safeguards, which the constitution has thrown around private rights.

We are told, however, that the defendants have no right to complain, inasmuch as the act was passed on their application and with their assent; and we are referred to the petition presented by the corporation to the legislature previous to the passage of the act, in support of this position. If it be true that the act was passed in compliance with the prayer of the defendants, and that they were willing to surrender the property in this manner, in consideration of the powers conferred on them, of compelling the building of the exterior streets, it would present a serious question, how far they are now estopped from denying or repudiating the consequences of their own acts.

But let us see what the defendants did ask the legislature to do.

The object, then, which the common council had in view, was to lay out permanent exterior streets, at the extremity of the grants, made and to be made to individuals. The previous issue of grants to the full extent of the four hundred feet, is assumed. It is also implied, that those grants contained covenants binding the grantees to make and build the exterior street. The difficulties complained of, were the unequal termination of the grants, rendering it impossible to make regular streets at their extremity, and the want of adequate power to compel their grantees to make the streets, within a reasonable time—the ordinary legal remedies upon a grant or lease not being sufficiently prompt or effectual to enforce the speedy completion of improvements in which the whole community was interested. They asked for no relief against riparian proprietors, or against persons whose grants did not exhaust the whole "four hundred feet—but only against their own grantees, and

Now it is difficult, we apprehend, to argue from this petition that the common council applied, for a law which should, in effect, take away this property from them, and confer it upon the owners of the land nearest or adjoining to the exterior streets—whether mere riparian proprietors, or proprietors of some part of the land under water, by. grant from themselves— or which should in any manner impair their title to such portion of the land as they had not already conveyed. The case.. of persons in the situation of these plaintiffs, does not appear to have been in the mind of the petitioners ; they sought for no relief against such, and if the legislature have in reality taken-away from the defendants these lands, and given them to the riparian proprietors, it certainly was not done on the applicar tion of the common council.

It is not to be denied, however, that the law in question was; assented to by the defendants ; at least no act has been shown' by which they rejected or protested against it. It has, moreover, been on the statute book for upwards of half a century— and on two several occasions since its original enactment, has-, been re-affirmed and re-enacted by the legislature.

It becomes material, then, to ascertain the meaning and true construction of the act in question.

“ The only rule,” said Lord Chief Justice Tindal, in the. case of the claim to the Dukedom of Sussex (8 Lond. Jur. 795), “ for the construction of acts of parliament, is, that they should be construed according to the intent of the parliament which passed the act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves, alone, do in. such case best declare the, intention of the lawgiver. But if any doubt arise from the, terms employed by the legislature, it has always been held aa a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse,’ to the preamble, which, according to Chief Justice Dyer, is a key to open the minds of the makers of the act and the misr chiefs which they intended to redress.”

Let us then, with the preamble as our key, endeavor to enter into the minds of the makers of the act.

It must be premised, however, that the original grant to the corporation of the four hundred feet beyond low water mark, was made with a proviso or condition “ that of the wharves to be run out there should be left towards the East and North river forty feet broad as well for the greater convenience of trades, as at any time thereafter, for the government to plant batteries thereon in case of any necessities.” (Kent’s Charter, § 38, p. 148, ed. 1851.)

The preamble to the act then recites, First, The desirableness of having streets or wharves of seventy feet in width laid out and completed in front of those parts of the city which adjoin to the East and North rivers, and of having piers extended from said streets into the said rivers respectively. It is to be observed here, that the legislature treats all within the line of the proposed streets, including the four hundred feet of the water grant, as part of the city, and both rivers as being in fact bounded by the extremity of the four hundred feet. The preamble next recites, that the mayor, aldermen, Ac., had by petition represented that they were disposed to make the said improvements, but that difficulties had arisen as to the execution of a proper plan for that purpose from several causes, one of which is stated, viz. that from the curving and irregularities of the shore, the grants made by their predecessors were deemed to extend to unequal distances in the rivers ; that doubts had arisen whether they could compel the proprietors of lots fronting on the rivers, to make the streets and build the

The object of the act then, as we gather it from the preamble, was two-fold. 1st. To establish regular exterior streets of seventy instead of forty feet in width, and 2d. T o compel the building of the streets by those grantees of the corporation who were proprietors of lots fronting on the rivers, that is, at the extremity of the four hundred feet beyond low-water mark on the natural shore, which was established in the charter as the boundary of the city. The preamble has no reference whatever to owners of land on the shore, or to any other proprietors, but those whose lands ran out to the full extent of the four hundred feet, for they alone could be said to be fronting on the river.

The act next proposes to accomplish the end in view, and to remove the doubts and difficulties which were represented in the preamble as standing in the way. “ Therefore,” it is added, “ Be it enacted, &c.”

And the first section authorizes the mayor, &c., to lay out such streets as “ are hereinbefore mentioned in front of those parts of the said city which adjoin to the said rivers,” using in this respect the very phraseology of the preamble, and of course in the same sense in which it is there used.

The second section declares that the streets or wharves shall be made at the expense of the proprietors of land adjoining, or nearest ánd opposite to said streets. There can be no doubt that, the proprietors of land adjoining the streets must be grantees from the corporation, or the corporation themselves, because the title to the lands under water adjoining the proposed streets, had by charter been vested in the corporation, and if it did not continue in them, must of necessity have been derived from

We have thus-by the aid of the preamble, we think, arrived at a satisfactory exposition of the statute. The plaintiffs’ construction makes the legislature, while proposing to accede to the wishes of the corporation, absolutely strip them of a valuable property, which at the time of the passage of the act they had enjoyed for upwards of fifty years, and bestow it upon those whom the plaintiffs term the riparian proprietors, merely upon making the exterior street or wharf.

According to the construction we have given, the legislature carries out fully and fairly the wishes of the corporation, as stated in the preamble to the act. and instead of depriving them of their property, in a summary and unconstitutional manner,, makes a further grant of their own land to the corporation grantees in order to effectuate the object in view. Nor does the act on this construction operate harshly or unjustly upon those, who had previously received water grants to the full

We have entered into this examination of the statute with much more minuteness, and at greater length than may appear to be necessary ; but the question we have discussed, is ojio of great difficulty, on which we confess we, at first, had serious-doubts, and it was due as well to the ability with which the-cause was argued' on both sides, as to the large interests-involved, to state fully and particularly the grounds on which we rest our decision.

If we have given the true construction of the act, the plaintiffs must fail—their claim is founded upon the title which they allege they acquired by virtue of the second section. They arano t, however, as we have seen, the proprietors-contemplated by that section—they have no land adjoining, or nearest and opposite to South street—and not coming within the purview or meaning of the act have no duties imposed upon them by it,, and are not entitled to any benefit which it confers.

It was urged, with great earnestness, by at least one of the counsel, that the plaintiffs were riparian owners, and that persons standing in that relation were entitled to the soil under water opposite to their upland, as their own property—that the title and interest of the government, and of course of the corporation, cannot override this inherent right of the riparian owners to the soil—that if the grant to the corporation in the charter was made with intent to vest the'fee in them in derogation of the rights of the riparian owners, it was void, as against them, and that the act of 1798 did nothing more than restore to the riparian owners that which had been previously taken from them, improperly and without right.

It might be' successfully answered in the present case, that whatever may be the general doctrine on this subject, these plaintiffs cannot be considered riparian owners. The charter which contained the grant in question was executed in 1732, and was confirmed by the constitution of 1777. The plaintiffs derived their title from the state, under conveyance by the •Commissioners of Forfeiture in 1784, more than fifty years after the date of the charter, and eight years after its confirmation by the constitution. The charter had established, the permanent line of the river at four hundred feet beyond low water mark, and had provided that a street or wharf should be built at the extremity of those four hundred feet, so that in contemplation of law the real side or bank of the river was, not the natural, but the legal or artificial boundary. The plaintiffs’ ancestor purchased with knowledge of this fact, or is chargeable with knowledge of it, and with knowledge therefore that his front on the river was liable to be cut off by the formation of this exterior wharf, under a title prior to his own. He was not as against the defendants the riparian proprietor, but they, the defendants, by virtue of their prior title, were themselves bounded on the line established by the sovereign power, and thus were the true riparian owners.

But we prefer to place our answer to this objection on broader grounds. We deny the position of the plaintiffs’ counsel altogether.

If the crown has the estate in fee, it follows also, that it can be granted. There is no such qualification in the books, that the soil cannot be granted to any person but the riparian proprietor. Lord Hale expressly says, that the king may license the erecting of quays, or other buildings, on the sea-coast, even below the low water mark, where they are not in fact annoyances or nuisances (Hale de Portibus Maris, 85. Hale de Jure Maris, 22), and that without the qualification contended for by the plaintiffs.

It is requisite, for the sake of commerce, that this power should exist. The necessary improvements, such as the erection of wharves and streets, on the river adjoining a great city, demand it. The Colonial Government, with a wise forethought, made provision for the erection of the necessary wharves and docks for this city, more than one hundred years ago ; and under that provision, the execution of which was committed to municipal authorities, the necessary wharves and streets have been, from time to time, erected as the public wants required. If the property, then, is vested in the government, or the Corporation by grant from them, there seems to be no reason why they may not deal with it as with any other property which they own, and ask for it a price proportioned to its value. The plaintiffs admit the right of the state to insist on the erection of wharves by the riparian owners, as the condition of the grant, and have no objection to a quit rent, provided it be a small one. If any quit rent can be reserved, the amount of it must, from the nature of the case, be discretionary ; and if a quit rent, why may not a sum, in gross, be demanded? The utmost that the owner of the upland can ask, is the first offer—the preemption—but if he declines to buy, and no grant can .be made to any other person in the event of his refusal, then he has the power to dictate the terms upon which the grant shall be made. This cannot be, especially where the

A single word as to the wharfage. The counsel for the plaintiffs argued on the supposition that the grant made to Fur-man, contained an absolute and unqualified grant of wharfage for ever. The grant extended only to Front street. It was perfectly well known to all the parties at that time, that the permanent line extended further into the river, and that the charter contemplated the building of South street at the extremity of the line, whenever the wants of the public demanded it. Now the covenant in the grant is not that the grantee should always be entitled to wharfage, but merely to the wharfage to accrue from Front street. Of course, when Front street was no longer an exterior street no wharfage would accrue from it, and the covenant would not be violated ; it would only be rendered inoperative, by reason of an event contemplated by both parties when the covenant was made.

The result of the whole is, that the bill must be dismissed; but we do not think the plaintiffs ought to be charged with costs.