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(46 S. Ct.)

land the crown and Parliament can without
limitation convey land under public waters, so
*391

building of docks and piers to facilitate ap- | for the public use, and that the grant of proach to the channel of such navigable waters. wharfage at the end of the street did not carThe beneficial enjoyment of land adjoining the ry the fee in the street, but only an easement channel of public waters may require or at of wharfage at the end of the street, as the least justify the conveyance of lands below high city might extend it into the river, and that, water on which to erect buildings. As in Eng by virtue of covenant in the deed, the grantee, if he would enjoy the wharfage, must erect a new wharf or pier at the new end of the extended street. The grant was not of the fee, but only of an ambulatory easement of wharfage on any extension of the street. But the city was nevertheless thereafter required to condemn this grant of the easement. American Ice Co. v. City of New York, 193 N. Y. 673, 87 N. E. 765, and 217 N. Y. 402, 112 N. E. 170.

in this state land under *water below high-wa-
ter mark can be conveyed by the Legislature,
or in accordance with constitutional and legis-
lative direction. Where the state has convey
ed lands without restriction, intending to grant
a fee therein for beneficial enjoyment, the title
of the grantee, except as against the rights of
riparian or littoral owners, is absolute, and
unless the grant is attacked for some reason
recognized as a ground for attack by the courts,
or the use thereof is prevented by the federal
government, there is no authority for an in-
junction against its legitimate use."

The Duryea and the Langdon Cases rest on
the delegation by the state to the city of the
state's sovereign right to control navigation
or the jus publicum in the land to be disposed
of by the city to private owners in pursuit of
the promotion of filling land under water to a
ripa or exterior line, and of the construction
of docks to make a harbor. The rights of
such private owners come, not from riparian
rights, or gratuitous statutory grants. They
come from a deed absolute of the lots con-

veyed for a money consideration. The
Steeplechase Park Case was a close case, as
shown by the dissents, and was not nearly so
strong a one for the application of the princi-
ple above stated as the case at bar, or the
Duryea and Langdon Cases.

The case of Sage v. Mayor, 154 N. Y. 61, 79, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592, does not conflict in any way with the Langdon and other cases. That only concerned the right of a riparian owner in the tideway which the city owned and deeded to another. It was held that the riparian owner had no more right to complain of the city's disposition of the tideway for the public interest by deed than had the owner of a United States Patent reaching to high-water mark to complain of the state's disposition of the tideway in Oregon in Shively v. Bowlby, supra.

The cases of Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.) 326, 11 Ann. Cas. 1, and Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378, 85 N. E. 1093, 127 Am. St. Rep. 962, concern conflicting rights of riparian owners and of persons with limited grants to put out a wharf without any feesimple title, and seem to us to have no bear

*393

If we are right in our conclusion as to the
effect of these deeds under the law of Newing upon the question here.
York at the time of their execution, then
there can be no doubt that the laws of 1857
and 1871 as enforced in this case impair the
contract made by the city with the grantees
of these deeds.

Cases cited as contrary to the New York
City water lot decisions just considered must
be examined, to see whether they involve
grants of lots under tidewater by deed ab-
solute in fee simple from the city or state, in
consideration of money paid and in promotion
of harbor plans or other public purposes.

*In Lewis Blue Point Co. v. Briggs, 198 N. Y. 287, 91 N. E. 846, 34 L. R. A. (N. S.) 1084, 19 Ann. Cas. 694, grantees under deeds made before 1700 conveying the excusive right of fishing leased for 10 years the right to plant and cultivate oysters in the navigable waters of the Great South Bay, Long Island, the lessees were held subject to an act of Congress authorizing and directing the dredging of a channel 2,000 feet long and 200 feet wide through their oyster beds without claim for compensation. It was held that they had de

Knickerbocker Ice Co. v. Forty-Second, etc., R. Co., 176 N. Y. 408, 68 N. E. 864, is re-rived no more right in the fishery than the lied on to show a conclusion adverse to the in

*392

ferences we have drawn as to the New York
law. There the Court of Appeals sustained
an order denying an injunction to restrain
the city from effecting an extension of Forty-
Third street into the Hudson river, sought by
one who by deed of the city was given the
right to wharfage at the end of Forty-Third
street. In the same deed land under water
on each side of the street was conveyed to
the grantee in fee simple. The court held
that the street was held in trust by the city
46 S.CT.-37

king had in his private ownership, and he could not convey the right to restrict navigation which he held in trust for the public. The colonial grant, therefore, which was not like a grant from the state, did not exclude the sovereign right to provide for navigation. Moreover, it was a federal right which the owners were opposing, and of course they had to yield. Tempel v. United States, 248 U. S. 121, 39 S. Ct. 56, 63 L. Ed. 162; Lewis Blue Point Oyster Co. v. Briggs, 229 U. S. 82, 33 S. Ct. 679, 57 L. Ed. 1083, Ann. Cas. 1915A, 232.

It is urged, against our view of what these deeds conveyed of the sovereign power of the state and the ownership of the city at the time of their execution, that it is opposed to the judgment of this Court in Illinois Central R. Co. v. Illinois, 146 U. S. 387, 13 S. Ct. 110, 36 L. Ed. 1018, in which the validity of a grant by the Illinois Legislature to the Illinois Central Railroad Company of more than 1,000 acres in the harbor of Chicago in Lake Michigan was under consideration. It was more than three times the area of the outer harbor, and not only included all that harbor, but embraced the adjoining submerged lands which would in all probability be thereafter included in the harbor. It was held that it was not conceivable that a Legislature could divest the state of this absolutely in the interest of a private corporation, that it was a gross perversion of the trust over the property under which it was held, an abdication of sovereign governmental power, and that a grant of such right was invalid. The limitations on the

*394

*doctrine were stated by Mr. Justice Field, who delivered the opinion, as follows, at page 452 (13 S. Ct. 118):

That case arose in the Circuit Court of the United States, and the conclusion reached was necessarily a statement of Illinois law, but the general principle and the exception have been recognized the country over and have been approved in several cases in the state of New York.

In Coxe v. State, 144 N. Y. 396, 39 N. E. 400, a company was created to reclaim and drain all or any portion of the wet or overflowed lands and tidewater marshes on or adjacent to Staten Island and Long Island, except such portions of the same as were included within the corporate limits of any city, upon the deposit of $25,000 and the payment to the state of a sum to be fixed by a commission after doing the work. This was a suit to recover a $25,000 deposit because the Attorney General had decided the law to be unconThe court followed the Illinois stitutional. Central Railroad Case, and held the law invalid, but said:

"For every purpose which may be useful, convenient, or necessary to the public, the state has the unquestionable right to make grants in fee or conditionally for the beneficial use of the grantee, or to promote commerce "The interest of the people in the navigation according to their terms. The extensive grant of the waters and in commerce over them may to the city of New York of the lands under be improved in many instances by the erection of wharves, docks, and piers therein, for which water below the shore line around Manhattan Island clearly comes within this principle, since purpose the state may grant parcels of the it was a grant to a municipality, constituting a submerged lands; and, so long as their disposi-political division of the state, for the promotion tion is made for such purpose, no valid objec- of the commercial prosperity of the city, and tions can be made to the grants. It is grants of consequently of the people of the state"-citing parcels of lands under navigable waters, that may afford foundation for wharves, piers, docks Langdon v. Mayor, 93 N. Y. 129.

and other structures in aid of commerce, and grants of parcels which, being occupied, do not substantially impair the public interest in the lands and waters remaining, that are chiefly considered and sustained in the adjudged cases as a valid exercise of legislative power, sistently with the trust to the public upon which

con

The opinion says:

"The title which the state holds and the pow er of disposition is an incident and part of its sovereignty, that cannot be surrendered, alienated, or delegated, except for some public pur

pose, or some reasonable use which can fairly be said to be for the public benefit."

*396

such lands are held by the state. But that is a very different doctrine from the one which would sanction the abdication of the general control of the state over lands under the navigable waters of an entire harbor or bay, or of a sea or lake. Such abdication is not consistent with the exercise of that trust which requires the government of the state to preserve such waters for the use of the public. The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters-citing Lansing v. Smith, supra; People v. New York & Staten Island Ferry Company. remaining, and a grant of the whole property in which the public is interested, that the lan- supra; and Langdon v. Mayor, supra; and guage of the adjudged cases can be reconciled." | added:

*The same rule and exception are laid down in Long Sault Development Co. v. Kennedy, 212 N. Y. 1, 105 N. E. 849, Ann. Cas. 1915D, 56, where the Legislature of New York attempted to give complete control of the navigation of the St. Lawrence river in the region of Long Sault Rapids, to a private corporation and abdicate its sovereign function. The court held the grant invalid, but said in stating the exception:

*395

"The power of the Legislature to grant land under navigable waters to private persons or corporations for beneficial enjoyment has been exercised too long and has been affirmed by this court too often to be open to serious question at this late day"

(46 S. Ct.)

* The contemplated use, however, must be reasonable and one which can fairly be said to be for the public benefit or not injurious to the public."

There is an interesting discussion of the same exception by Chief Justice Bartlett in People v. Steeplechase Park, supra, at page 482 (113 N. E. 521), in which he cites United States v. Mission Rock Co., 189 U. S. 391, 406, 23 S. Ct. 606, 47 L. Ed. 865, and emphasizes the distinction between the Illinois Central, the Coxe, and Long Sault Cases and grants like those we are considering. It is clear that

the ruling in those cases has no application here.

[5] But it is said, and the court below held, that the fee simple granted by the deeds in this case did not exclude the right of the city to regulate and preserve navigation over the waters covering the land conveyed until they were filled, and that this distinguishes the

Duryea, Langdon, and other cases, in which

the filling had taken place, from the present

one.

The suggestion that rights of ownership in lands under water, conveyed by the city by

*397

Of course we do not intend to say that under such deeds as these, as long as water connected with the river remains over the land conveyed and to be filled, navigation may not go on and boats may not ply over it, and that incident to such use occasional mooring may not take place. But it is a very *398 different thing to say that *the city, which has parted with the jus publicum and jus privastricted control of navigation, with the right tum over such water lots, remains in unreto dredge them, or appropriate the water over them as a slip or regular mooring place for its adjoining piers, in the doing of a great business, largely excluding plaintiffs and all others from use of the water over those lots for the constant private use of the city's tenants for its profit. This distinction and conclusion is borne out by the decision of the Court of Appeals in Re Mayor of the City, 193 N. Y. 503, 87 N. E. 759, where the court was dealing with the question of the elements of value of a pier right in the Hudson river, granted by the city to an individual in a deed with covenants quite like those in this case when the pier adjoined an unfilled water lot of the city.

The court said:

course, that so long as this territory was not filled in it served the purposes of access to the pier, but that was merely a privilege by sufferance and not a legal right."

such a deed in fee simple, *are restricted, and the city's control of navigation of the water "The deed of the pier right cannot be construed as conferring any right of access from over them remains complete until they are or over the lands which the city might at its filled, cannot be accepted without qualifica-pleasure cause to be filled in. It is obvious, of tion in respect to grants which are intended to part both with the jus publicum and jus privatum, as we have found these deeds to do. The suggestion does not find support in the case of First Construction Co. of Brooklyn v. State, 221 N. Y. 295, 116 N. E. 1020, cited to sustain it. In that case, Beard was an upland owner whose land bordered on Gowanus Bay. The Legislature in three acts granted to a private person the right to build wharves and fill in lands in a salt meadow marsh and mud flats partially submerged at high tides. The court (Hiscock, C. J.), in stating the case, said:

"It may be stated generally that none of them [the legislative acts] did more than grant to Beard and others the privilege to build wharves, etc., and fill in lands; none of them purported in terms to grant and convey the title to lands under water included with him the area now appropriated, and none of them was passed by a two-thirds vote."

It was held that no title could pass, because it was a gratuity, and no grant could be made under the Constitution without a twothirds vote of the Legislature, which was not here, and that it was only a privilege or franchise, which could not ripen into a title until the land was filled. It does not bear on the case here, except in the necessary inference, from the treatment of the matter in the opinion, that, if title had passed, filling was not necessary to vest full fee simple in the grantee.

The evidence shows that two slips between the city piers at Thirty-Ninth street and Fortieth street, and those between Fortieth street and Forty-First street are usually blocked with coal barges, with railroad floats carrying box cars on them, with cattle boats using a runway for cattle at the side of the piers, and all are being moored in the slips for the use and benefit of the lessees and oth

er tenants of the city for the pecuniary profit of the city. This and the dredging of the soil of the plaintiffs certainly are more than a privilege of sufferance. Whittaker v. Burhans, 62 Barb. (N. Y.) 237; Wall v. Pittsburgh Harbor Co., 152 Pa. 427, 25 A. 647, 34 Am. St. Rep. 667.

The wharfage rights of the city at the piers in Thirty-Ninth, Fortieth, and Forty-First streets as far at Thirteenth avenue under the deeds before us cover only the ends of those

*399

piers and not *their sides. This is clear, because the grantees of the deeds were vested with the wharfage on Thirteenth avenue along the river extending from Thirty-Ninth street to Forty-First street, except that at the ends of the cross streets. In this state of the case, the rights of the city, having parted with the sovereign regulation of navigation in the water over these lots, are not different

from those of the owner of the upland, who builds out his pier to deep water. His right is limited to the front or end of the pier for his private use.

Judge Cullen, in Jenks v. Miller, 14 App. Div. 480, 43 N. Y. S. 932, points out that:

"Though the owner of adjacent upland has the right of access to the river and also the right to construct a proper pier therein, he has no easement or interest in the lands under water in front of the adjacent proprietors. The riparian right of access, so far as it is a proper right incident to the ownership of the upland, is strictly a right of access by the front."

The same principle is approved in Consumers' Coal & Ice Company v. City of New York, 181 App. Div. 388, 394, 169 N. Y. S. 92, where it said that privately owned land under public waters is subject to the navigation of vessels over it, but cannot be appropriated by others to enlarge the berths at private piers. Compare Keyport Steamboat Co. v. Transportation Co., 18 N. J. Eq. 511, 515; United States v. Bain, 24 Fed. Cas. 940, No. 14,496.

Our conclusions are that Appleby and Latou were vested with the fee-simple title in the lots conveyed, and, with a grant of the wharfage at the ends of the lots on the river, that with respect to the water over those lots and the wharfage the state and the city had parted with the jus publicum and the jus privatum, and that the city can only be revested with that by a condemnation of the rights granted.

[6] What, then, is the effect upon the rights of the parties of the fact that the grantees

*400

only filled the part of lots *conveyed east of Twelfth avenue? The plaintiffs are not in default in this because there was no covenant on their part to fill. Duryea v. Mayor, supra, at page 596; Id., 96 N. Y. 477, 496; Mayor v. Law, supra, at page 391 (26 N. E. 471). The filling was left to their convenience. They were not in default with reference to filling in the streets and avenues, because their covenant to do so was only on condition that the city should require it, and only when it did so. The reason for their delay in filling the remainder of the lot beyond Twelfth avenue was doubtless due to the passage of the act of 1857 and of the act of 1871, and their reasonable expectation that the city would condemn their rights, an expectation that was confirmed by the condemnation proceeding which was directed to be begun in 1890 by the dock commission, and was begun in 1894, and remained without prosecution, and operated as a dead hand upon this property for 20 years, until 1914, when the city discontinued it. Thereupon this suit was promptly brought.

[7] The rights of the plaintiff with reference to the use of the water over their lots lying between the bulkhead line and Twelfth

avenue are not affected by the order of the
Secretary of War. The evidence shows that
for 100 feet or more inside the line the wa-
ter over these lots is made part of the slip
and city mooring place for the city's pier;
that in order to adapt it to such a purpose
the soil in the lots is being constantly dredged,
the dredging having increased the depth of
the water from 3 feet to 16 and 20 feet. This
has been done by the city on the assumption
that, because it is water connected with the
river, the city may improve its navigation.
As the city has parted with the jus publicum
in respect to these lots, it may not exercise
this power, and must be content with sailing
over it with boats as it finds it. The dredg-
ing of the mud in those lots to a depth of 15
feet is a trespass upon the plaintiffs' rights.
They have a right at *their convenience to
fill both lots from the bulkhead line easterly
to Twelfth avenue and beyond. And we know
from a record in a related case, argued with
this and to be decided this day (271 U. S. 403,
46 S. Ct. 581, 70 L. Ed. 1009), that they have
applied for permission to fill the lots and are
So, too, the
pressing their right to do so.
use of the water over these lots inside the
bulkhead line for mooring places, berths, or
slips by the city and its tenants, as we have
shown, violates the rights of the plaintiffs.
They are entitled to an injunction against
both.

* 401

The order of the Secretary of War of 1890 fixing the bulkhead line 150 feet west of Twelfth avenue, and allowing pier extensions far beyond Thirteenth avenue, to 700 feet from the bulkhead line, does not take away the right of the plaintiffs to object to the city's dredging their lots, or to its using the water over their lots for what is in effect an exclusive slip and mooring place. The order did not restore to the city the power as against these plaintiffs to regulate navigation over their lots, and so did not make the act of 1857 and the act of 1871 with respect to the spacing of 100 feet between piers and for mooring places adjoining the piers effective to defeat those deeds. The action of the city in making these deeds and covenants was, of course, subject to the dominant right of the government of the United States to control navigation; but the exercise of that dominant right did not revest in the city a control and proprietary right which it had parted with by solemn deed and covenant to these plaintiffs.

The only just and possible result of the Secretary of War's order is that the enjoyment by the plaintiffs of their rights under the deeds is qualified to the extent of a compliance with it without conferring any affirmative power upon the city to detract from the rights which it had granted. The plaintiffs are prevented from solidly filling between the bulkhead line and Thirteenth avenue, but the order expressly authorizes the

*402

(46 S.Ct.)

(271 U. S. 403)

APPLEBY et al. v. DELANEY, Commissioner
of Docks of City of New York.

(Reargued March 1, 1926. Decided June 1,
1926.)

substitution for such *filling of the construc-
tion of piers on piling driven into the lots
of the plaintiffs. To whom is given the right
to build piers over these lots? The govern-
ment does not attempt to take it away from
the owners of the lots. It does not attempt
to vest it in the city. It could not do so if
it would. The right must reside in those who.
have the ownership of the land under the
water and who until the Secretary had made
his order were entitled by their grants to
use the solid filling up to the line of Thir-
teenth avenue, without reference to the bulk-
head lines or to the 100 feet spacing between
the piers under the acts of 1857 or 1871.

The lots have been bought and paid for, subject only to control by the general government in the interest of navigation. The general government, through its agent, says it does not require open water for navigation, but is sufficiently satisfied by piers on piles extending over the water. The city has by deed granted to the Applebys the wharfage and cranage rights upon these lots. What is there to prevent the Applebys, by the construction of piers on piles over their lots, in conformity to the Secretary of War's order, from enjoying the profit from that wharfage?

It thus is seen that the limitations on the right of the city to use the water over the lots outshore from the bulkhead line are no different from what they are inshore of the bulkhead line. The right of the city in respect to the use of the water over the lots beyond the bulkhead line is, as is said in Re Mayor of the City, supra, already quoted, merely a privilege by sufferance, and not a legal right, and lasts only until these lots may be covered by piers on piles, as allowed by the Secretary of War.

The plaintiffs are therefore entitled also to an injunction to prevent the dredging of their lots by the city from the bulkhead line to Thirteenth avenue, and also to prevent the continued use of the water over their lots in

*403

that same *extent as a slip or permanent mooring place for the adjoining piers of the city. They are also entitled to a specific injunction against the overhanging platform which was put out by the city for its tenants on the north side of the Thirty-Ninth street pier.

The application of the acts of 1857 and 1871 by the courts of New York would reduce the rights which were intended to be conveyed in these deeds to practically nothing, and would leave the grantees only the privilege of paying taxes for something quite unsubstantial. The qualification of those rights by the order of the Secretary of War still leaves value in the deeds, if the acts of 1857 and 1871 are invalid, as we hold them to be when applied as they have been in this case.

The judgment of the Supreme Court of New York is reversed for further proceedings not inconsistent with this opinion.

No. 16.

Constitutional law 121 (2)-Authority of
dock commissioner and sinking fund trustees,
under statute creating department of docks,
held such that plan adopted, and refusal to
permit filling water lots because in conflict
therewith, was equivalent to state statute,
which, if it conflicted with city's grant of such
lots, was an unlawful impairment of contract
(Laws N. Y. 1871, c. 574; Const. U. S. art.
I, § 10).

fund trustees, under Laws N. Y. 1871, c. 574,
Authority of dock commissioner and sinking
creating a department of docks, held such as
to make plan for harbor improvement adopted
by them, and their refusal to permit filling of
water lots because of conflict with plan, equiva-
lent to a state statute, which, if it conflicted
with grant and covenants in city's deed of such
lots, was an unlawful impairment of contract
obligation, in violation of Const. U. S. art. 1,
§ 10.

2. Constitutional law 121 (2)-Navigable wa-
ters 37(4)-City's grantees of land under
water held entitled to fill lots, and dock com-
missioner's denial of permit impaired obliga-
tion of contract (Laws N. Y. 1871, a. 574;
Const. U. S. art. 1, § 10; Sinking Fund Ordi-
nance of 1874, tit. 4, § 15).

City's grantees of water lots "and soil un-
der water to be made land and gained out of
the Hudson or North River or harbor of New
York," who covenanted not to build wharves,
bulkheads, etc., or to make the lands, until per-
mission for that purpose had been obtained
from the city, and who paid valuable consider-
ation for such grant and taxes for many years,
held entitled to permission to fill lots, and dock
commissioner's denial thereof on ground that
fill would not conform to plan adopted by him
under Laws N. Y. 1871, c. 574, was an impair-
ment of obligation of grantee's contract, in vio-
lation of Const. U. S. art. 1, § 10; Sinking Fund
Ordinance of 1874, tit. 4, § 15, if applicable to
land of grantees being mere police requirement.

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