Van Brunt, P. J.:
It is claimed upon the part of the plaintiff that Butgers being the owner of the upland, and the grantee of the city of New York, of land to low-water mai'k, his devisees had the rights of riparian owners to build wharves and piers. It is assumed in this proposition that Butgers was the grantee -of the city, of land to low-water mark. We fail to find any evidence to support this assumption. He was the grantee of the city of land to the south side of South street as it was to be laid out under the covenants of the deed from the city to him. Whether the south line of South street coincided with the low-water mark or not does not appear, and there is no presumption whatever that it did.
It is also assumed that Butgers, as the owner of the upland, had some riparian rights, derived from the common law, independent of any statutory provisions regulating the procedure of the corporation of the city of New York in the improvement of its water front. In this proposition the learned counsel seems not to have taken notice of the distinction between the rights of riparian owners of land bounded by the sea or on navigable rivers, where the tide ebbs and flows, and the rights of such owners of land bounded on rivers or upon the margins of the same above tide water.
In the case of Furman v. New York(5 Sand., 16), this distinction is expressly recognized, and it is held that by the common law, the King is seized in fee of all the lands under. the navigable waters of his realm and is entitled to grant and convey them, and that he has the right of soil under all rivers within the flux and reflux of the sea, and that it follows from the nature of the property of the crown in the soil under water that riparian owners are not entitled as matters of right to the soil under water in front of their uplands. Upon the affirmance of the above case in 10 New York, 567, this principle was again enunciated and formed the basis of the decision.
The cases of Yates v. Milwaukee (10 Wall., 497), and Weber v. Harbor Commissioners (18 Wall., 64), in no way militate against the rule above stated. The question as to riparian rights discussed in Yates v. Milwaukee did not relate to navigable waters wherein the tide ebbed and flowed, and in the second case cited only the rule as applicable to the first is affirmed. It is true that by the act of April 3, 1807, certain pre-emptive rights were given to riparian owners, [383]*383but that act in no way related to land situated south of the northerly side of Corlears Hook, the location of the pier in question. The act of 1807 was a grant to the corporation of the city of New York of 400 feet into the East river from the northerly side of Corlears Hook. The plaintiffs, therefore, had no rights whatever in respect to the lands below high-water mark except such as they may have derived by the grant from the corporation of the city of New York, the owners thereof. It is true that by the acts of 1798 and 1801 above referred to, the corporation were authorized to direct piers to be sunk and completed at the expense of the proprietors of lands lying opposite to the place where such piers should be directed to be sunk; and that in the event of the neglect of said proprietors to sink or make such piers according to the directions of the mayor, etc., it should be lawful for them to sink and make the same at their own expense and receive to their own use, wharfage or to grant the right of making such piers and the right of receiving the profits thereof to any person or persons in fee or otherwise upon such terms as they might think proper. But in the event of a disregard, upon the part of the corporation, of these privileges which were extended by the acts of the Legislature to the adjacent owners and the building of such piers by the corporation or the authorization of their being built by other parties, the adjoining owners did not become the proprietors of the piers thus built.
In the case of Whitney v. The Mayor, etc. (6 Abb. New Cas., 339, 340), where this question is discussed, the court say: “ Without pronouncing a definite opinion whether the proceedings of the corporation were so far regular as to put the respondent in the wrong and produce a forfeiture of his rights, it is enough to decide that inasmuch as the pier has been constructed, the respondent’s remedy, if any, is by an action for the specific wrong he has suffered for depriving him of the opportunity to contribute to the expense and of having an interest in the pier to the same extent.”
■ The action in that case was brought upon the theory that the pier was a legal obstruction to the use of the plaintiff’s bulk-head, and that the corporation were wrong-doers. The court say: “ I am of the opinion that if it should be conceded that the corporation failed to give the respondent the requisite notice to erect or contribute to thé expense of erecting the pier, it does not follow that [384]*384that structure is a nuisance or a purpresture. The corporation was the exclusive judge of the propriety of constructing piers -and of the places where they should, be situated. This power was committed to the common council for important public purposes, having relation to the great city of which they were the local legislature. It was, however, to be exercised with a proper regard to the interests of riparian proprietors, but the structures were to bo upon the land under water, belonging to the city and not to the proprietors. It would, however, be likely to prejudice them by covering a portion of their water front, and to compensate them for this inconvenience they were allowed to have the direct profits arising from the piers if they would be at the expense of constructing them. But it cannot be maintained, because a directing portion of the statute has been disregarded, that an important public work which the city had a general right to construct is to be therefore regarded as a nuisance. If it were situated upon the respondent’s land the case would be different. * * * If the respondent has sustained an injury in being deprived of an opportunity which the statute intended to secure, him to erect it himself, and have the wharfage arising from it, he is entitled to his action for that specific grievance. This is not matter of form, for it may be, for aught that has appeared in this case, that the enterprise of constructing the pier was a very unprofitable one, looking only to the direct revenue arising from it, and that the respondent could not, with a proper regard to his own interest, have afforded to erect it. In such case his damage would be merely nominal.”
The case of Langdon v. Mayor, etc. (93 N. Y., 129) in no way militates against the view hereinbefore expressed. In construing the grant from the city the court laid particular stress upon the fact that such grant naturally and obviously imported a perpetual grant of wharfage with a perpetual right of free access to the wharf from the adjacent water, and founded this conclusion upon the fact that they were contracting in reference to what was then believed to be the permanent exterior water line of the city on the North river, which line was represented as such permanent exterior line upon the map annexed to the conveyance. The action of Langdon v. Mayor was an action for damages caused by reason of the erection of a new wharf or bulk-head in front of plaintiff’s wharf, and was In [385]*385consonance with the rule laid down in such cases in the case of Whitney v. The Mayor.
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Van Brunt, P. J.:
It is claimed upon the part of the plaintiff that Butgers being the owner of the upland, and the grantee of the city of New York, of land to low-water mai'k, his devisees had the rights of riparian owners to build wharves and piers. It is assumed in this proposition that Butgers was the grantee -of the city, of land to low-water mark. We fail to find any evidence to support this assumption. He was the grantee of the city of land to the south side of South street as it was to be laid out under the covenants of the deed from the city to him. Whether the south line of South street coincided with the low-water mark or not does not appear, and there is no presumption whatever that it did.
It is also assumed that Butgers, as the owner of the upland, had some riparian rights, derived from the common law, independent of any statutory provisions regulating the procedure of the corporation of the city of New York in the improvement of its water front. In this proposition the learned counsel seems not to have taken notice of the distinction between the rights of riparian owners of land bounded by the sea or on navigable rivers, where the tide ebbs and flows, and the rights of such owners of land bounded on rivers or upon the margins of the same above tide water.
In the case of Furman v. New York(5 Sand., 16), this distinction is expressly recognized, and it is held that by the common law, the King is seized in fee of all the lands under. the navigable waters of his realm and is entitled to grant and convey them, and that he has the right of soil under all rivers within the flux and reflux of the sea, and that it follows from the nature of the property of the crown in the soil under water that riparian owners are not entitled as matters of right to the soil under water in front of their uplands. Upon the affirmance of the above case in 10 New York, 567, this principle was again enunciated and formed the basis of the decision.
The cases of Yates v. Milwaukee (10 Wall., 497), and Weber v. Harbor Commissioners (18 Wall., 64), in no way militate against the rule above stated. The question as to riparian rights discussed in Yates v. Milwaukee did not relate to navigable waters wherein the tide ebbed and flowed, and in the second case cited only the rule as applicable to the first is affirmed. It is true that by the act of April 3, 1807, certain pre-emptive rights were given to riparian owners, [383]*383but that act in no way related to land situated south of the northerly side of Corlears Hook, the location of the pier in question. The act of 1807 was a grant to the corporation of the city of New York of 400 feet into the East river from the northerly side of Corlears Hook. The plaintiffs, therefore, had no rights whatever in respect to the lands below high-water mark except such as they may have derived by the grant from the corporation of the city of New York, the owners thereof. It is true that by the acts of 1798 and 1801 above referred to, the corporation were authorized to direct piers to be sunk and completed at the expense of the proprietors of lands lying opposite to the place where such piers should be directed to be sunk; and that in the event of the neglect of said proprietors to sink or make such piers according to the directions of the mayor, etc., it should be lawful for them to sink and make the same at their own expense and receive to their own use, wharfage or to grant the right of making such piers and the right of receiving the profits thereof to any person or persons in fee or otherwise upon such terms as they might think proper. But in the event of a disregard, upon the part of the corporation, of these privileges which were extended by the acts of the Legislature to the adjacent owners and the building of such piers by the corporation or the authorization of their being built by other parties, the adjoining owners did not become the proprietors of the piers thus built.
In the case of Whitney v. The Mayor, etc. (6 Abb. New Cas., 339, 340), where this question is discussed, the court say: “ Without pronouncing a definite opinion whether the proceedings of the corporation were so far regular as to put the respondent in the wrong and produce a forfeiture of his rights, it is enough to decide that inasmuch as the pier has been constructed, the respondent’s remedy, if any, is by an action for the specific wrong he has suffered for depriving him of the opportunity to contribute to the expense and of having an interest in the pier to the same extent.”
■ The action in that case was brought upon the theory that the pier was a legal obstruction to the use of the plaintiff’s bulk-head, and that the corporation were wrong-doers. The court say: “ I am of the opinion that if it should be conceded that the corporation failed to give the respondent the requisite notice to erect or contribute to thé expense of erecting the pier, it does not follow that [384]*384that structure is a nuisance or a purpresture. The corporation was the exclusive judge of the propriety of constructing piers -and of the places where they should, be situated. This power was committed to the common council for important public purposes, having relation to the great city of which they were the local legislature. It was, however, to be exercised with a proper regard to the interests of riparian proprietors, but the structures were to bo upon the land under water, belonging to the city and not to the proprietors. It would, however, be likely to prejudice them by covering a portion of their water front, and to compensate them for this inconvenience they were allowed to have the direct profits arising from the piers if they would be at the expense of constructing them. But it cannot be maintained, because a directing portion of the statute has been disregarded, that an important public work which the city had a general right to construct is to be therefore regarded as a nuisance. If it were situated upon the respondent’s land the case would be different. * * * If the respondent has sustained an injury in being deprived of an opportunity which the statute intended to secure, him to erect it himself, and have the wharfage arising from it, he is entitled to his action for that specific grievance. This is not matter of form, for it may be, for aught that has appeared in this case, that the enterprise of constructing the pier was a very unprofitable one, looking only to the direct revenue arising from it, and that the respondent could not, with a proper regard to his own interest, have afforded to erect it. In such case his damage would be merely nominal.”
The case of Langdon v. Mayor, etc. (93 N. Y., 129) in no way militates against the view hereinbefore expressed. In construing the grant from the city the court laid particular stress upon the fact that such grant naturally and obviously imported a perpetual grant of wharfage with a perpetual right of free access to the wharf from the adjacent water, and founded this conclusion upon the fact that they were contracting in reference to what was then believed to be the permanent exterior water line of the city on the North river, which line was represented as such permanent exterior line upon the map annexed to the conveyance. The action of Langdon v. Mayor was an action for damages caused by reason of the erection of a new wharf or bulk-head in front of plaintiff’s wharf, and was In [385]*385consonance with the rule laid down in such cases in the case of Whitney v. The Mayor. It would appear, therefore, that whatever rights of the plaintiff were invaded by the construction of this wharf, it not being constructed upon land belonging to the plaintiffs, an action for possession will not lie.
It is, however, urged upon the part of the plaintiff, that Stevenson & Pierce, the lessees of the plaintiff’s ancestor, acquired no rights to the pier except in that capacity, and that, therefore, the rights of their assignees terminated at the expiration of the lease, claiming that when a tenant of land acquires an interest in adjacent lands by reason of such tenancy, and for the use of the leased premises it enures to his benefit only while the tenancy continues, and on the expiration of the tenancy reverts to the landlord. To support this proposition various English cases are cited and reference is also made to the ease of Dempsey v. Kipp (61 N. Y., 462), where this rule seems to be recognized in the opinion of the court. A material distinction exists, however, between the rale claimed and the facts in the case at bar. It is necessary to the rule that the interest acquired in the adjacent lands should be for the use of the leased property. There is no evidence in this case that the pier in question was built for the use of the property leased by Stevenson & Pierce from the plaintiffs’ testator. Upon the trial it appeared affirmatively, by the evidence of Mr. Jarvis, that the pier was built for general commercial purposes, he stating that it was built for the purpose of having it for a wharf for the steamers that first began to come to the port of New York — the Sirius, the Great "Western and then the British Queen. It would, therefore, appear that the rule claimed on behalf of the plaintiffs has no application to this case. It further appears from the proceedings of ■ the common council that the permission given to Stevenson & Pierce to construct this pier was to be at their own expense and for their own benefit. It is true that the confirmatory resolution was made subject to any and all such rights, if any, which the owners of the fee may at any time have in and to the same. What this phrase may mean does not clearly appear, as the corporation was without dispute the owner of the fee. As has been already seen, whatever rights the adjacent owners of the uplands may have had it did not give them the right to the possession of the pier after its construc[386]*386tion, blit simply to an action for damages because of the violation of tlieir rights by this construction, if such rights were violated. That it was not the intention of Stevenson & Pierce to construct this pier for the benefit of the Rutger estate seems to he apparent from the fact that they at once proceeded to exercise absolute .ownership over the same, mortgaging the same and conveying the ¡same by a warranty deed in 1848. It further appears that this pier in no way interferes or communicates with the land belonging to .the Rutger estate. The hulk-head communicating with the pier 'is from thirteen to sixteen feet south of the southerly line of ■the land -granted to Rutgers by the deed, and the bulk-head stands upon land, the title to which belongs to the city and in which the Rutger estate has no interest. Under all these circumstances it is difficult to see how the plaintiffs can succeed in establishing a right to the possession of the pier in question as claimed by them. It has not been thought necessary to consider the exceptions to the ■evidence, as the evidence, if • admitted, could not affect the legal proposition hereinbefore stated.
The judgment appealed, from must he affirmed, with costs.
Bradt and Daniels, JJ„, concurred.
Judgment affirmed, with costs.