priate both lots. It was delayed for 20 years, presumably for a lack of funds. In 1914 it was discontinued by the city. This action was commenced shortly thereafter.

head line by the Secretary of War in 1890 made the waters of the Hudson river westerly of that line open and in use for purposes of commerce and navigation, and that no acDuring the pendency of the condemnation tion to restrain or prevent the use of that waproceeding, the city constructed concrete and ter for loading or unloading at the city piers steel piers against plaintiffs' objection with- would lie, but that the city was without right in the lines of West Thirty-Ninth street, of to dredge any soil or part of the granted Fortieth street, and Forty-First street, begin-premises east of the bulkhead line, and ning at or near Twelfth avenue and extend- should be enjoined from doing so. The Speing westerly to and beyond Thirteenth ave-cial Term refused damages for the dredging nue. It placed thereon iron or steel sheds which had been done for failure to adduce and leased these to tenants excluding the proper evidence as to what the damages were public from the piers. The piers have numer- and allowed only a nominal recovery.

*371

ous doors and windows which open on *to the
water over the Appleby lots, so that boats
are constantly moored and fastened alongside
of the piers and in the adjoining slips upon
plaintiffs' premises and discharge their car-
goes and freight into the sheds. The city also
constructed an overhanging dumping board
or platform extending northerly from the
Thirty-Ninth street pier for the use of its
tenants over the same water. The city has
from time to time dredged plaintiffs' premis-
es between its piers without their consent to
a depth of about 20 feet, and threatens to
continue to do so. West of the bulkhead line
the depth of water varied from 4 feet in 1884
to 20 feet now. East of the line the bottom
was an average depth of 3 feet, and was
dredged to 16 or 20 feet as far east as 50 feet
from the west side of Twelfth avenue, or 100
feet inside the bulkhead line. The record con-
tains reports in 10 years, between 1895 and
1905, showing dredging of about 150,000 cubic
yards in the two slips or basins. From its
piers, made more valuable by the use of these
slips and mooring places, the city receives
substantial rentals and income from its
sees and other occupants of the piers.

On appeal, the Appellate Division also held that the deeds carried to the plaintiffs the jus publicum and the jus privatum from the city and the state, and that the plaintiffs' rights under the deeds could not be affected by the acts of 1857 and 1871, but closed its findings and conclusions as follows:

"The federal statutes and the action of the Secretary of War in establishing a bulkhead line across the granted premises thereby constituted the waters beyond said bulkhead line navigable waters, and though the federal gɔvernment established a pierhead line further west in the river, as the federal government did not attempt to provide regulations as to the building of piers, wharves, or docks within said space, the state government had a right to regulate the construction of docks, piers, and wharves between said bulkhead line and pierhead lines, and having by chapter 763 of the Laws of 1857 provided that no piers should be erected within 100 feet of another pier, and having by chapter 574 of the Laws of 1871, as supplemented and amended, authorized the city

*373

of New York, through its officials, to adopt a plan for water front of the city of New York, including the erection of piers thereon, and the les-city having pursuant to said resolution adopted a plan requiring piers to be erected in ThirtyNinth, Fortieth, and Forty-First streets, and said piers naving been erected, thereby prevented the plaintiffs from erecting any pier, wharf, cityises under water between the said bulkhead line or other structure whatsoever upon their premestablished by the Secretary of War and Thirteenth avenue.

No request was ever made by the city that Appleby should fill the streets, which he covenanted to fill on the city's call, and not to fill until that. After the act of 1871, the built the piers, and the streets and avenues specified in the deeds, so far as they have been built. Thirteenth avenue, being out shore from the bulkhead line fixed in 1857 and 1871, was never filled.

In January, 1917, the plaintiffs were required to pay as back taxes upon these lots

the sum of $74,426.01.

The prayer of the petition is that the city and its tenants and the other defendants be enjoined from using plaintiffs' lots as a slip or permanent mooring place and from dredging them.

The Special Term of the Supreme Court held that the deeds here in question conveyed

*372

a fee-simple title to the plaintiffs, carrying both the jus publicum and the jus privatum, and that their rights could not be affected by

"Section 33. The plaintiffs are not entitled to an injunction restraining the city of New York from using or authorizing the use by others of the plaintiffs' premises either within or

without the federal bulkhead line, for the purpose of mooring, docking and floating boats."

The Court of Appeals, in its opinion (235 N. Y. 351, 139 N. E. 474), affirming the decree of the Appellate Division, after referring to the laws of 1857 and 1871 as the basis of the contention of the city that the plaintiffs were not entitled to relief, said:

"When the Secretary of War established the bulkhead line, the title of the state, the city, and its grantees beyond such line was subordi nated to such use of the submerged lands as should be required for the public right of navithe act of 1857 and the act of 1871, or the orgation. No private property right requiring ders of the dock commissioners under that compensation was taken or destroyed by the act, but that the establishment of the bulk-establishment of such line. The owner's title

*

(46 S. Ct.)

was subject to the use which the United States
might make of it.
* Plaintiffs have no
authority to fill in any portion of their lands
west of the bulkhead line. The city of New
York, in the execution of its plans for the im-
provement of the water front westerly of such
line for the purpose of navigation, invaded no
right of plaintiffs."

The court said further that, if the plaintiffs' lots easterly of the bulkhead line had been actually filled in, they would no longer be lands under water, and would be completely subject to the plaintiffs' control, but that, so long as they remained unfilled and under water, they were subject to the sovereign power of the state and city to regulate the use of the water over them for purposes of naviga

*374

we must determine it from the law of the
state as it was when the deeds were executed
to be derived from statutes then in force and
from the decisions of the state court then and
since made; but we must give our own judg-
ment derived from such sources, and not ac-
cept the present conclusion of the state court
without inquiry.

Ordinarily this court must receive from
the court of last resort of a state its state-
ment of state law as final and conclusive, but
the rule is different in a case like this. Jef-
ferson Bank v. Skelly, 1 Black, 436, 443, 17
L. Ed. 173; University v. People, 99 U. S.
309, 321, 25 L. Ed. 387; New Orleans Water
U. S. 18, 38, 8 S. Ct. 741, 31 L. Ed. 607; Hunt-
Company v. Louisiana Sugar Company, 125
ington v. Attrill, 146 U. S. 657, 684, 13 S. Ct.
224, 36 L. Ed. 1123; Mobile & Ohio Railroad

Ed. 793; Louisiana Railway & Naviga

v. Tennessee, 153 U. S. 486, 14 S. Ct. 968, 38

tion, and accordingly held that in respect to
them the city had invaded no right of the
plaintiffs. The opinion of the Court of AP-L.
peals indicates that previous decisions of the
court contain dicta in respect to the jus pub-35 S. Ct. 62, 59 L. Ed. 175; Long Sault Co.
licum and jus privatum that cannot be sus-
tained.

Messrs. Charles E. Hughes, of New York City, Charles Henry Butler, of Washington, D. C., and Banton Moore, of New York City, for plaintiffs in error.

Messrs. Charles J. Nehrbas, George P. Nicholson, and William C. Cannon, all of New York City, for defendants in error.

tion Co. v. Behrman, 235 U. S. 164, 170, 171,

v. Call, 242 U. S. 272, 277, 37 S. Ct. 79, 61 L.
Ed. 294; Columbia Railway v. South Caro-
lina, 261 U. S. 236, 245, 43 S. Ct. 306, 67 L.

Ed. 629.

We must also consider here what effect the
action of the United States in its dominant

control over tidal waters for the preservation
and promotion of navigation has had in af-
fecting or destroying the rights of the plain-
*381

tiffs *claimed to have been impaired by the
acts of 1857 and 1871, and to consider wheth-
er such action has rendered the state legisla-
tive impairment innocuous and deprived
plaintiffs of the right to complain of it.

The plaintiffs in their writ of error charge that the judgment of the Supreme Court of New York, as affirmed by the Court of Ap[3, 4] Upon the American Revolution, all the peals, has interpreted and enforced the acts proprietary rights of the crown and Parliaof 1857 and 1871 in such a way as to impairment in and all their dominion over lands unthe obligation of the contract in their deeds. der tidewater vested in the several states, sub[1, 2] The questions we have here to deter-ject to the powers surrendered to the nationmine are, first, was there a contract; second, al government by the Constitution of the what was its proper construction and effect; and, third, was its obligation impaired by subsequent legislation as enforced by the state court? These questions we must answer independently of the conclusion of that court. Of course we should give all proper

$380

weight to its judgment, but we cannot perform our duty to enforce the guaranty of the federal Constitution as to the inviolability of contracts by state legislative action unless we give the questions independent consideration. It makes no difference what the answer to them involves, whether it turns on issues of general or purely local law, we cannot surrender the duty to exercise our own judgment. In the case before us, the construction and effect of the contract involved in the deeds and covenants depend chiefly upon the extent of the power of the state and city to part with property under navigable waters to private persons, free from subsequent regulatory control of the water over the land and the land itself. That is a state question, and

United States. Shively v. Bowlby, 152 U. S.
1, 14 S. Ct. 548, 38 L. Ed. 331. The rights
of the plaintiffs in error under the two deeds
here in question with their covenants are to
be determined then by the law of New York
delivery. They were not deeds of gift; they
as it was at the time of their execution and

were deeds for valuable consideration paid
in money at the time, and a large amount of
taxes on the lots have been collected from
the plaintiffs by reason of their ownership.
The principle applicable in the construction
of grants of lands under navigable waters in
the state of New York was announced by the
Supreme Court of Errors in 1829 in Lansing
v. Smith, 4 Wend. (N. Y.) 9, 21 Am. Dec. 89.
In that case, which has always been regard-
ed as a leading one, the commissioners of the
Land Office in New York granted without
valuable consideration to an upland owner
land under water on which he erected a
wharf after filling in the same. Thereafter
the Legislature authorized the erection of a
mole or pier in the river for the purpose of

1

constructing a basin for the safety and protection of canal boats, and this mole or pier entirely encompassed the wharf on the side In that case the question involved the efof the water so as to leave no communication fect of a legislative grant of lands under between it and the river except through a water, so far as appears without valuable sloop lock at one extremity of the basin. It consideration, by the land commission of the was held that the loss sustained by the own-state in 1818 to one John Gore on the eastern er was damnum absque injuria, that the shore of Staten Island, including the premises grant only conveyed the land described in it thereafter acquired by the New York & StatThe grant exby metes and bounds, and, being in deroga- en Island Ferry Company. tion of the rights of the public nothing would tended from low-water mark into the bay a be implied. distance of 500 feet, to have and to hold to Gore, his heirs and assigns, as a good and in

the power to regulate commerce, given by the federal Constitution."

*382

*Chancellor Walworth, speaking for the defeasible estate of inheritance forever, unCourt of Errors of the state, said:

"By the common law, the king as parens patriæ owned the soil under all the waters of all navigable rivers or arms of the sea where the tide regularly ebbs and flows, including the shore or bank to high-water mark. He held these rights, not for his own benefit, but for the benefit of his subjects at large, who

der a statute authorizing the grant of such lands as the commissioners should "deem necessary to promote the commerce of the state." It was held that, as there was nothing to show that it was intended to restrict the state in the preservation of the navigation of the river in that 500 feet the grant to Gore might be and was restricted by the subsequent statute of 1857 of the state of New York, providing that it should not be lawful to fill in the land granted with earth or other solid material beyond the bulkhead

were entitled to the free use of the sea, and all tide waters, for the purposes of navigation, fishing, etc., subject to such regulations and restrictions as the crown or the Parliament might prescribe. By Magna Charta, and many subsequent statutes, the powers of the king are lim-line established under that law, or by piers ited, and he cannot now deprive his subjects of these rights by granting the public navigable waters to individuals. But there can be no doubt of the right of Parliament in England, or the Legislature of this state, to make such grants, when they do not interfere with the The vested rights of particular individuals. right to navigate the public waters of the state and to fish therein, and the right to use the public highways, are all public rights belonging to the people at large. They are not the private unalienable rights of each individual. Hence the Legislature as the representatives of the public may restrict and regulate the exercise of those rights in such manner as may be deemed most beneficial to the public at large: Provided they do not interfere with vested rights which have been granted to individuals."

that should exceed 70 feet in width, with intervening water spaces of at least 100 feet between them. It was therefore decided that the erection of a clubhouse on the land granted was a purpresture.

In the case of People v. New York & Staten Island Ferry Company, 68 N. Y. 71, the Court of Appeals, speaking of the common law, said (at page 77):

*

*383

"But while the sovereign can make no grant in derogation of the common right of passage over navigable waters, Parliament may do so. But a person claiming a special right in a navigable river or arm of the sea under a grant by Parliament, as, for example, a right to obstruct it, or to interfere in any way with the public easement, *must show a clear title. It will not be presumed that the Legislature intended to destroy or abridge the public right for private benefit, and words of doubtful or equivocal import will not work this consequence. [At page 78:] The state, in place of the crown, holds the title, as trustee of a public trust, but the Legislature may, as the representative of the people, grant the soil, or confer an exclusive privilege in tidewaters, or authorize a use inconsistent with the public right, subject to the paramount control of Congress, through laws passed, in pursuance of

*384

It is apparent from these decisions that, under the law of New York when these cases were decided, whenever the Legislature deemed it to be in the public interest to grant a deed in fee simple to land under tidal waters and exclude itself from its exercise as sovereign of the jus publicum (that is, the power to preserve and regulate navigation), it might do so, but that the conclusion that it had thus excluded the jus publicum could only be reached upon clear evidence of its intention and of the public interest in promotion of which it acted.

What is thus declared as the law of New York in these two cases, where it was found that the jus publicum had not been conveyed, is shown in a number of cases in the Court of Appeals, in which the state and its agency, the city, did part with the jus publicum to private owners of land under tidal water, and of wharfage rights thereon, upon adequate compensation and in pursuance of a plan of harbor improvment for the public in

terest.

In the cases of Duryea v. Mayor, 62 N. Y. 592, and Duryee v. Mayor, 96 N. Y. 477, a deed of land under tidal water by the city of New York, with the authority of the state, conferred upon the grantees a fee-simple title with all the privileges of an absolute owner, except as restricted by the covenants and reservations contained in it. The cove nants related to the filling of the streets running through the lots, which were excepted from the grant. The grantees had partial

(46 S. Ct.)

ly filled the water lots, and while this was
being done the city with a sewer had flowed
the land with the contents of the sewer. The
sewer had been placed under a revocable li-
cense of the owner, but when the license was
withdrawn the city insisted on continuing to
use the lots for sewer discharge, and this it
was held the city could not do.

In the later case, in 1884, the Court of Ap-
peals, speaking of the deed, said at page 497:
"As we have before seen, the deed conferred
upon the grantees therein the title and absolute
ownership of the property conveyed, subject
only to be defeated at the option of the grantor
*385

for a breach of the condition subsequent. *The
claim now made, that there was some right or
interest in the property which still remained
in the city notwithstanding its deed, is op-
posed to the principles declared in our former
decision, and the express language of the con-
veyance."

In Towle v. Remsen, 70 N. Y. 303, 308, the
Court of Appeals, in dealing with the effect
of a deed of New York City of land under ti-
dal waters, said:

the map or plan." In consideration of the
grant the grantee covenanted to pay certain
perpetual rents, to make such wharves as
should be necessary to make the portion of
West street, within the bounds of the grant,
of the width specified, and forever there-
after to maintain and keep them in repair.
The city covenanted that the grantee should
at all times thereafter have the wharfage,
from the wharf or wharves to be erected on
the west end of the premises granted. Astor
constructed West street across the land
granted, in accordance with his covenant,
and maintained the wharf on the westerly
line of said street. Without making compen-
sation to the plaintiff, who succeeded to his
title, the city erected a bulkhead outshore
from such westerly line and filled up the
space between it and the old bulkhead and
destroyed the use of the wharf. It was con-
tended that the city and state could not part

with the power to preserve and regulate navi-
the 200 feet beyond owned by the city. The
gation in the water between the wharf and
Court of Appeals held that the covenant as

by its grant from the state the right to fill up
the land granted, to build wharves thereon,
and to receive wharfage; that whatever prop-
erty rights it thus acquired it could convey to
individuals; that by its grant to Astor the
city conveyed, not only the land, excepting
the part covered by West street, but also the

*387

to the wharf which the city made to Astor
"The land under water originally belonged to in the deed was a grant of an incorporeal
the crown of Great Britain, and passed by the hereditament of wharfage, which the city or
Revolution to the state of New York. The por-state could not impair; that the city acquired
tion between high and low water mark, known
as the tideway, was granted to the city by the
early charters (Dongan Charter, §§ 3 and 14;
Montgomerie Charter, § 37), and the corpora-
tion have an absolute fee in the same (Nott
v. Thayer, 2 Bosw. 61). It necessarily fol-
lows that the city had a perfect right, when
it granted to the devisees of Clarke, to make
the grant of their portion of the land in fee-
simple absolute. As to the land outside of the
tideway, the city took title under chapter 115
of the Laws of 1807, with a proviso giving the
pre-emptive right to the owners of the adja-
cent land in all grants made by the corporation
of lands under water granted by said act.
** * The Legislature left it to the city to
dispose of the interests mentioned upon the
proviso referred to; but it enacted no condi-
tion that it should not dispose of that which it
owned in fee simple upon such terms as it
deemed proper, and in the absence of any such
enactment such a condition cannot be implied."

A deed of this class came before the Court
of Appeals in Langdon v. Mayor, 93 N. Y. 129.
The state commissioners of the land office,

under a law of 1807, granted to the city a
strip of land under water in the North River,
the westerly line of which was in the river
400 feet west of the low-water mark. The
city laid out an extension of West street
along this strip, parallel with the river; the

*386

right of wharfage; that an *easement (i. e., a
perpetual right of free access to the wharf
across West street over the land of the city)
therein passed by necessary implication; that
the city had the right to grant such ease-
ment; that the Legislature could not by the
act in question authorize a destruction or
impairment of this easement without compen-
sation to the owner; and that therefore the
action for damages was maintainable.

In the course of his opinion for the court,
Judge Earl, speaking of the power of the city
conferred upon it by the state, said (at page
144):

|
and grants, the course of legislation, and all
"Here, taking the language of the charters
the statutes in pari materia, the situation of
the lands granted and the use to which many
portions of them had, with the knowledge and
consent of the Legislature, been from time to
time devoted, it is very clear that the lands
under water around the city were conveyed to
*westerly line of the street being about 200 it in fee, to enable it to fill them up as the
feet out in the river west of low-water mark. interest of the city might require, and to reg-
In 1810 the city granted to Astor, the ownerulate and control the wharves and wharfage.
of the adjoining uplands, certain lands under
water, including a portion of the strip, the
westerly bounds of the grant being "the per-
manent line of West street, saving and re-
serving so much of the same as will be neces-
sary to make West street in accordance with

We think it equally clear that whatever title
and property rights the city thus obtained it
could transfer and convey to individuals. Hav-
ing the power to extend the ripa around the
city, and thus make dry land, it could authorize
any individual to do it. Whatever wharves and
docks it could build, it could authorize in-

dividuals to build; and whatever wharfage it, could take, it could authorize individuals to take. Its dominion over the lands under water, certainly for the purposes indicated in the preamble contained in section 15 above cited, was complete."

Speaking of the wharfage granted the vessels in its front, and that the property judge said (at page 152):