Scott, J.:
Plaintiffs, as executors of the will of, and devisees of Charles E. Appleby, deceased, are the-owners of land under water of the area of two city blocks lying between Twelfth and Thirteenth avenues, as heretofore projected and laid out, and Thirty-ninth and Fortieth streets, and Fortieth and Forty-first streets in the city of New York. The city has constructed piers at the foot and in extension of said streets, and has leased to various persons and corporations, defendants herein, the exclusive right to use parts of said piers which extend into the river far beyond the limits of the pro- ■ jected, but unbuilt, Thirteenth 'avenue. The use of these piers involves the temporary mooring of vessels alongside them, and some of these vessels are thus moored, from time to time, over the land under water owned by plaintiffs.
It is not customary, upon an appeal of this character, to pass upon the merits of the controversy between the parties, but when the essential and controlling facts are presented by the motion papers and are undisputed, as is the case here, and no question of discretion is involved, it is not unusual to consider the merits even upon an appeal from an order granting or refusing a preliminary injunction. (Rothschild & Co. v. Interborough R. T. Co., 162 App. Div. 532; Dutton & Co. v. Cupples, 117 id. 172.) Plaintiffs’ title is derived from two deeds, commonly known as water grants, identical in terms except as to the property granted, one of which was made to Charles E. Appleby on August 1, 1853, and the other of which was made to Robert Latou on December 24, 1852, the said L'atou having subsequently conveyed the [371]*371premises granted to the aforesaid Charles E. Appleby, of whom plaintiffs are the successors in interest and title. All of the land under water involved in the action was originally outside of high-water mark, and upon the separation of the colonies from Great Britain became vested in the State of New York. (People v. N. Y. & Staten Island Ferry Co., 68 N. Y. 71.) By chapter 58 of the Laws of 1826 the Commissioners of the Land Office were directed to issue letters patent to the city of New York granting to it all the right and title of the State “to the lands covered with water along the easterly shore of the North or Hudson’s river, contiguous to and adjoining the lands of the said mayor, aldermen and commonalty, within the said city of New-York, at and from low water mark, and running four hundred feet into the said river,” between certain designated points. Later, by chapter 182 of the Laws of 1837, this grant was confirmed and directed to be so construed as to grant to the city the lands under water easterly of the westerly fine of Thirteenth avenue, which was by said act established as the permanent exterior street to avenue in the said city along the easterly shore of the North or Hudson’s river, between the southerly line of Hammond street and the northerly fine of One Hundred and Thirty-fifth street. The act also extended the intersecting streets to said Thirteenth avenue. At this time Thirteenth avenue was projected, and all the territory east of it up to Twelfth avenue was, as it is now, land under water. The grants to Appleby and Latou each conveyed “All that certain water lot or vacant ground and soil under water to be made land and gained out of the Hudson or North river or Harbor of New York” extending between the streets above named from the line of original high-water mark to the westerly line or side of Thirteenth avenue. As the original line of high water was some distance to the east of Twelfth avenue, the grant covered much more than the particular land under water involved in this action, which is only the land lying between Twelfth and Thirteenth avenues. The grants excepted and reserved so much of the premises described therein as constituted, upon the map attached thereto, Twelfth and Thirteenth avenues and the intersecting streets. ' It also contained the usual covenant on the part of the grantee that he [372]*372would “ within three months next after he * * * shall be thereunto required by the said parties of the first part or their successors ” build and fill in the aforesaid streets and avenues. Each grant also contained the following clause: “And it is hereby further agreed by and between the parties to these presents, and the true intent and meaning hereof is that this present grant and every word or thing in the same contained shall not be construed or taken to be a covenant or covenants of warranty or of seizin of said parties of the first part or their successors or to operate further than to pass the estate, right, title or interest they may have or may lawfully claim in the premises hereby conveyed by virtue of their several charters and the various acts of the Legislature of the People of the State of New York.”
It is evident that the plan and policy of the city for the improvement of its water front along the North or Hudson river was, at this time, the construction of an exterior street, to be known as Thirteenth avenue, with a continuous bulkhead, and solid filling inside and to the eastward of that bulkhead. This plan was, however, soon abandoned and in 1855 an act was passed (Laws of 1855, chap. 121) under which a commission was appointed by the Governor which recommended to the Legislature the establishment of certain bulkhead and pier lines. The lines thus recommended were approved and adopted by the Legislature by chapter 763 of the Laws of 1857, entitled: “ An Act to establish bulkhead and pier lines for the port of New-York.” By that act the bulkhead line at the point in question was located about 100 feet west of the westerly line of Twelfth avenue and at Forty-first street about 300 feet east, and at Thirty-ninth street about 262 feet east of the easterly line of Thirteenth avenue. Subsequently and on April 13, 1871, the municipal authorities, pursuant to authority contained in the charter of 1870 (Laws of 1870, chap. 137, § 99, as amd. by Laws of 1871, chap. 574, § 6), adopted a final plan which established a bulkhead line or line of solid filling 50 feet further out into the'river than had been established in 1857. In 1890 the Secretary of War of the United States, pursuant to authority vested in him by the Congress, established a bulkhead line which, coincides with.theiine adopted.by the city in 1871. (See [373]*37325 U. S. Stat. at Large, 425, § 12, as amd. by 26 id. 455, §12.)
We think that there can be no doubt that by the acts of the Federal and State governments above recited plaintiffs’ predecessor in title was effectually debarred from reclaiming the land under water by carrying out the line of solid filling beyond the bulkhead lines thus established. The grantees of the city of New York, no matter how wide the language of the grants may have been, could take no more than the city itself possessed and was authorized to grant, and so the grant itself expressly provided. The grants from the State to the city, and from the latter to its grantees, were made with a view to the improvement of the water front and for the advancement of commerce. Undoubtedly the grants to Appleby and Latou conveyed a title in fee to the lands under water, but it was a fee qualified as to the uses to which the land could be put and subject to the control of the State and Federal authorities as to such uses. What the grantees from the city acquired was a naked fee, with the right to fill in and make land to be gained out of the North river when and if, but not until required so to do by the city of New York. This seems to be well settled. In People v. N. Y. & Staten Island Ferry Co. (68 N.
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Scott, J.:
Plaintiffs, as executors of the will of, and devisees of Charles E. Appleby, deceased, are the-owners of land under water of the area of two city blocks lying between Twelfth and Thirteenth avenues, as heretofore projected and laid out, and Thirty-ninth and Fortieth streets, and Fortieth and Forty-first streets in the city of New York. The city has constructed piers at the foot and in extension of said streets, and has leased to various persons and corporations, defendants herein, the exclusive right to use parts of said piers which extend into the river far beyond the limits of the pro- ■ jected, but unbuilt, Thirteenth 'avenue. The use of these piers involves the temporary mooring of vessels alongside them, and some of these vessels are thus moored, from time to time, over the land under water owned by plaintiffs.
It is not customary, upon an appeal of this character, to pass upon the merits of the controversy between the parties, but when the essential and controlling facts are presented by the motion papers and are undisputed, as is the case here, and no question of discretion is involved, it is not unusual to consider the merits even upon an appeal from an order granting or refusing a preliminary injunction. (Rothschild & Co. v. Interborough R. T. Co., 162 App. Div. 532; Dutton & Co. v. Cupples, 117 id. 172.) Plaintiffs’ title is derived from two deeds, commonly known as water grants, identical in terms except as to the property granted, one of which was made to Charles E. Appleby on August 1, 1853, and the other of which was made to Robert Latou on December 24, 1852, the said L'atou having subsequently conveyed the [371]*371premises granted to the aforesaid Charles E. Appleby, of whom plaintiffs are the successors in interest and title. All of the land under water involved in the action was originally outside of high-water mark, and upon the separation of the colonies from Great Britain became vested in the State of New York. (People v. N. Y. & Staten Island Ferry Co., 68 N. Y. 71.) By chapter 58 of the Laws of 1826 the Commissioners of the Land Office were directed to issue letters patent to the city of New York granting to it all the right and title of the State “to the lands covered with water along the easterly shore of the North or Hudson’s river, contiguous to and adjoining the lands of the said mayor, aldermen and commonalty, within the said city of New-York, at and from low water mark, and running four hundred feet into the said river,” between certain designated points. Later, by chapter 182 of the Laws of 1837, this grant was confirmed and directed to be so construed as to grant to the city the lands under water easterly of the westerly fine of Thirteenth avenue, which was by said act established as the permanent exterior street to avenue in the said city along the easterly shore of the North or Hudson’s river, between the southerly line of Hammond street and the northerly fine of One Hundred and Thirty-fifth street. The act also extended the intersecting streets to said Thirteenth avenue. At this time Thirteenth avenue was projected, and all the territory east of it up to Twelfth avenue was, as it is now, land under water. The grants to Appleby and Latou each conveyed “All that certain water lot or vacant ground and soil under water to be made land and gained out of the Hudson or North river or Harbor of New York” extending between the streets above named from the line of original high-water mark to the westerly line or side of Thirteenth avenue. As the original line of high water was some distance to the east of Twelfth avenue, the grant covered much more than the particular land under water involved in this action, which is only the land lying between Twelfth and Thirteenth avenues. The grants excepted and reserved so much of the premises described therein as constituted, upon the map attached thereto, Twelfth and Thirteenth avenues and the intersecting streets. ' It also contained the usual covenant on the part of the grantee that he [372]*372would “ within three months next after he * * * shall be thereunto required by the said parties of the first part or their successors ” build and fill in the aforesaid streets and avenues. Each grant also contained the following clause: “And it is hereby further agreed by and between the parties to these presents, and the true intent and meaning hereof is that this present grant and every word or thing in the same contained shall not be construed or taken to be a covenant or covenants of warranty or of seizin of said parties of the first part or their successors or to operate further than to pass the estate, right, title or interest they may have or may lawfully claim in the premises hereby conveyed by virtue of their several charters and the various acts of the Legislature of the People of the State of New York.”
It is evident that the plan and policy of the city for the improvement of its water front along the North or Hudson river was, at this time, the construction of an exterior street, to be known as Thirteenth avenue, with a continuous bulkhead, and solid filling inside and to the eastward of that bulkhead. This plan was, however, soon abandoned and in 1855 an act was passed (Laws of 1855, chap. 121) under which a commission was appointed by the Governor which recommended to the Legislature the establishment of certain bulkhead and pier lines. The lines thus recommended were approved and adopted by the Legislature by chapter 763 of the Laws of 1857, entitled: “ An Act to establish bulkhead and pier lines for the port of New-York.” By that act the bulkhead line at the point in question was located about 100 feet west of the westerly line of Twelfth avenue and at Forty-first street about 300 feet east, and at Thirty-ninth street about 262 feet east of the easterly line of Thirteenth avenue. Subsequently and on April 13, 1871, the municipal authorities, pursuant to authority contained in the charter of 1870 (Laws of 1870, chap. 137, § 99, as amd. by Laws of 1871, chap. 574, § 6), adopted a final plan which established a bulkhead line or line of solid filling 50 feet further out into the'river than had been established in 1857. In 1890 the Secretary of War of the United States, pursuant to authority vested in him by the Congress, established a bulkhead line which, coincides with.theiine adopted.by the city in 1871. (See [373]*37325 U. S. Stat. at Large, 425, § 12, as amd. by 26 id. 455, §12.)
We think that there can be no doubt that by the acts of the Federal and State governments above recited plaintiffs’ predecessor in title was effectually debarred from reclaiming the land under water by carrying out the line of solid filling beyond the bulkhead lines thus established. The grantees of the city of New York, no matter how wide the language of the grants may have been, could take no more than the city itself possessed and was authorized to grant, and so the grant itself expressly provided. The grants from the State to the city, and from the latter to its grantees, were made with a view to the improvement of the water front and for the advancement of commerce. Undoubtedly the grants to Appleby and Latou conveyed a title in fee to the lands under water, but it was a fee qualified as to the uses to which the land could be put and subject to the control of the State and Federal authorities as to such uses. What the grantees from the city acquired was a naked fee, with the right to fill in and make land to be gained out of the North river when and if, but not until required so to do by the city of New York. This seems to be well settled. In People v. N. Y. & Staten Island Ferry Co. (68 N. Y. 71) the Court of Appeals had before it a grant made by the State of New York to one Gore of land under water adjacent to Staten Island. The court said: “The grant to Gore in 1818 was authorized by law, and he acquired thereby the title to the soil under water, embraced within the grant; but there is nothing in the words of the grant, or in the statute which authorized it, indicating any purpose'of interfering with the public right in the waters of the bay. * * * The grant operates as a license from the State to the grantee to erect wharves and piers upon the lands granted. This is according to the general understanding and is the practical construction of grants made under the act. The grantee acquires the title to the soil and the State cannot annul the grant, and the grantee, by virtue of his proprietary interest, can exclude any other person from the permanent occupation of the land granted, and wharves and piers erected by the grantee upon the land embraced in the grant are not per se a nuisance. But the State [374]*374does not, by a grant made under the act of 1813,
We think that there can be no doubt, as was said in Knickerbocker Ice Co. v. Forty-second Street R. R. Co. (176 N. Y. 408), that: “The title of the city of New York in the tideway and the submerged lands of the Hudson river granted under the Dongan and Montgomerie charters and the acts of the Legislatures of 1807, 1826 and 1837 † was not absolute and unqualified, but was and is held subject to the right of the public to the use of the river as a water highway, ” and, as has already been said, the grantees from the city could obtain no more absolute and unqualified title than the city itself held.
It seems to be quite clear then that plaintiffs’ predecessors in [375]*375title, while retaining title in fee to the soil under water, long since lost the right to fill in and make solid land outside of the bulkhead line established by authority of the State in 1871. Many of the cases relied upon by plaintiffs have no application because they arose with reference to lands which had been filled in and reclaimed. As was said in the Staten Island Ferry Company Case (supra): “We need not inquire what the rights of a grantee would he in respect to piers and wharves erected under the license implied from the grant before it had been revoked, or the State had, in the exercise of its discretion, made regulations upon the subject.”
If, however, any doubt should exist as to the right of plaintiffs’ predecessors in title to fill in outside of the bulkhead line established in 1871, there can he no doubt, as we consider, that such right was finally and completely lost in 1890, when the Secretary of War, acting under the authority of Congress, established the same bulkhead line that had been established by the city under authority of the State in 1871.
The Hudson river is, of course, a navigable stream, and the powers of Congress over such waters is an incident to its power to regulate commerce and is paramount, when exercised, to the power of the State. So long as Congress does not see fit to exercise this paramount power, the States have jurisdiction over navigable waters within their own confines, but there always remains the reserved power of the Federal government to step in and supersede the State authority, and this it may do even with respect to navigable waters lying wholly within the State limits. (Rhea v. Newport News & M. V. R. Co., 50 Fed. Rep. 16.) Hence it follows that the control and development of all navigable streams remain within the ultimate jurisdiction of the Federal government, and that all persons who acquire, by grant from the State, title to lands under water within the limits of a navigable stream do so subject to the exercise by the Federal government of its power to determine how far such streams may be encroached upon. (Garrison v. Greenleaf Johnson Lumber Co., 215 Fed. Rep. 576. See, also, Scranton v. Wheeler, 179 U. S. 141.)
It seems to us, therefore, to be clear beyond reasonable dispute that the owners of the land under water involved in this [376]*376action lost in 1871, and certainly in 1890, whatever prospective right they may theretofore have had to fill in and reclaim outside of the bulkhead line then established. They never had the right, but only a duty if called upon, to build the piers at the foot of and in extension of the intersecting streets.
If these views are sound there is no ground for the injunction sought by plaintiffs. The grants under which they claim, as already pointed out, were made with a view to filling in and reclaiming from the Hudson river the area granted. The right to so fill in having been taken away by subsequent acts of the State and the United States, the waters covering the granted lands have been preserved for the uses of commerce and navigation precisely as if no grant had been made. Plaintiffs retain the naked fee to the soil under water, but without the right to impede or prevent the use of the water for the purposes for which it has been so preserved. Plaintiffs could not fill in to the line of Thirteenth avenue, or throw booms across the spaces between the piers and thus prevent the use of the waters by the public for commercial purposes. ¡Nor can they achieve the same purpose by injunction.
The order appealed from must be affirmed as a matter of right and not in the exercise of discretion, with ten dollars costs and disbursements.
Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.
Order affirmed as matter of right and not in the exercise of discretion, with ten dollars costs and disbursements.
See R. L. of 1813, chap. 74 (1 R. L. 292), as amd. by Laws of 1815, chap. 199. — [Rep,