The opinion of the court was delivered by
Whelpeey, J.
Albert N. brown, claiming to be the owner of a lot of land in the county of Hudson, bounding upon high water mark in the bay of New York, obtained from the board of chosen freeholders of that county a license to build a wharf in front of bis lot, extending beyond low water mark. His application was made under the act of March 18th, 1851, entitled, “An act to authorize the owners of lands upon tide waters to build wharves in front of the same.” Upon a writ of certiorari, sued out by the Morris Canal and Banking Company, claiming to be the owners of the same shore, the Supreme Court have declared the license granted to Brown void, upon the ground that he was not the shore-owner at that place, and could not legally apply for the license.
The court held that Brown was bound to prove before the freeholders, to their satisfaction, that he was shore-owner at that place, and that if the evidence upon which the freeholders acted did not prove, to the satisfaction of the Supreme Court, such ownership, the power existed in the court, in the proceeding then before them, to declare the license void; and proceeded to examine certain documents and allegations which were before the freeholders upon the hearing of the application, and held that they ditl not show, to the satisfaction of the court, that Brown was such shore-owner; that the burthen of proof lay upon him, and that inasmuch as ownership of the shore was a jurisdictional fact, the license for want of that ownership was void.
[650]*650All these matters were directly involved in the decision of the case, although it seems, from the course of the argument in this court, that the power of the court to make that decision in the cause was not questioned, indeed it has not been disputed or denied by the counsel in this court, the argument of the plaintiff in error having proceeded upon the assumption that the power existed, although it had been erroneously exercised'upon the facts as they appeared.
Whether this power exists in the mode in which it has been exercised, depends upon the true construction of the act. Manifestly the main, if not only object of the act, was to avoid the necessity of special applications to the legislature for permission to build wharves in front of lands bordering upon tide waters, and to transfer the right to grant or refuse such applications from the legislature to another body, political and local in its constitution and character; to delegate to it the protection of the public right of navigation.
The board of chosen freeholders, being a body elected by the people to take care of the public rights and interests of the county, seemed best adapted to guard these rights.
The mischief designed to be remedied, and the remedy provided, both clearly show that it was not the intention to create a legal tribunal for the settlement and determination of private rights, or for the trial of title to lands between conflicting claimants.
It will be seen, by a careful examination of the several provisions of the act, that the mode of proceeding and powers conferred upon the board are legislative, rather than judicial.
They are to proceed, as a body, at once to grant or refuse the permission applied for, or they may appoint a committee to examine the premises and report, and may, without further examination, adopt the report of the committee, if satisfied by it, that the granting of the application will not injuriously interfere with the public right [651]*651of navigation, or they may grant (lie application in a modified form.
Their powers are ampie to enable them to protect the public right from injury, but entirely inadequate for the trial of title to lands, either on documentary or parol evidence.
Their only power of bringing parties before them who may desire to litigate, is to require proof to 1 e filed of the public notice required by the act having been given, as therein prescribed. They have no process to compel the attendance of parties or witnesses, or to swear and examine the latter, should they attend voluntarily, oven upon the public question submitted to them. The proceedings before us in this ease, the unverified maps, the unautheuticatod memoranda of loose conversations, the testimony of witnesses given upon honor, not oath, the unproved title of the plaintiff in error, on which tiie freeholders assumed to act, all show the anomalous character of the whole proceeding, if it be assnmed that the board had the right to decide the matter of title to the shore at the point in question. The further fact that the Supreme Court have in this very case decided (granting their jurisdiction), without one syllable of legal evidence before them, that Brown is not the legal owner of the shore in question—for it needs no argument to show that if the freeholders had no power to verify documents or examine witnesses under oath, that all that appeared before them was in no higher sense evidence than, the proceedings of a public meeting to be found in a daily paper—further show the absurdity of giving to the act a construction warranting the trial of title to lands. Indeed it is clear that the only legal evidence the board have a right to require is an affidavit of the publication of the proper notices, which must be filed before they proceed. When that is done, they may proceed to grant the license by default without examination (unless objection bo made) if the improvement applied for shall not appear to them to [652]*652interfere with the public right of navigation, and to determine this upon their own view, if any examination is necessary.
Can it be. possi de that the legislature ever designed to confer upon the board of chosen freeholders of the county of Hudson the power to decide, for the purpose of determining whether they will hear an application for permission to I uild a wharf upon the construction of a deed, whether certain words in it create a base fee terminable on a certain contingency, or whether the applicant is a remainderman or tenant of the particular estate; whether, by the law of descents, he is entitled to the one-half or whole of the shore in question? To impute such an intention to the legislature is to charge them with want of ordinary intelligence.
There are two sections of the'act which seem to give some countenance to the idea that the title of the applicant is necessarily drawn in question in the proceeding. They are the 5th and 9th sections of the act.
The 5th section provides that the license shall authorize and empower the applicant to erect the dock, and that, when erected, it shall be vested in said shore-owner, in the same manner, and for the same estate, and with the same limitation over in remainder, or otherwise, as the lands along the said tide waters in front of which the same were made may be.
This, upon a cursory reading, would appear to give the improvement to “ the said shore-owner,” that is, to him who made the application. But it is manifest that the whole scope of the section was to leave the question of the existence, quality, quantity, and duration of the estate of the applicant in the dock, entirely unaffected by the granting of the license, and to be dependent upon the title of the applicant, as it might actually be in the shore claimed by him. If he had an estate for life or years, he holds the dock of that estate. If an estate which may be terminated in a day, his right to the dock will continue [653]
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The opinion of the court was delivered by
Whelpeey, J.
Albert N. brown, claiming to be the owner of a lot of land in the county of Hudson, bounding upon high water mark in the bay of New York, obtained from the board of chosen freeholders of that county a license to build a wharf in front of bis lot, extending beyond low water mark. His application was made under the act of March 18th, 1851, entitled, “An act to authorize the owners of lands upon tide waters to build wharves in front of the same.” Upon a writ of certiorari, sued out by the Morris Canal and Banking Company, claiming to be the owners of the same shore, the Supreme Court have declared the license granted to Brown void, upon the ground that he was not the shore-owner at that place, and could not legally apply for the license.
The court held that Brown was bound to prove before the freeholders, to their satisfaction, that he was shore-owner at that place, and that if the evidence upon which the freeholders acted did not prove, to the satisfaction of the Supreme Court, such ownership, the power existed in the court, in the proceeding then before them, to declare the license void; and proceeded to examine certain documents and allegations which were before the freeholders upon the hearing of the application, and held that they ditl not show, to the satisfaction of the court, that Brown was such shore-owner; that the burthen of proof lay upon him, and that inasmuch as ownership of the shore was a jurisdictional fact, the license for want of that ownership was void.
[650]*650All these matters were directly involved in the decision of the case, although it seems, from the course of the argument in this court, that the power of the court to make that decision in the cause was not questioned, indeed it has not been disputed or denied by the counsel in this court, the argument of the plaintiff in error having proceeded upon the assumption that the power existed, although it had been erroneously exercised'upon the facts as they appeared.
Whether this power exists in the mode in which it has been exercised, depends upon the true construction of the act. Manifestly the main, if not only object of the act, was to avoid the necessity of special applications to the legislature for permission to build wharves in front of lands bordering upon tide waters, and to transfer the right to grant or refuse such applications from the legislature to another body, political and local in its constitution and character; to delegate to it the protection of the public right of navigation.
The board of chosen freeholders, being a body elected by the people to take care of the public rights and interests of the county, seemed best adapted to guard these rights.
The mischief designed to be remedied, and the remedy provided, both clearly show that it was not the intention to create a legal tribunal for the settlement and determination of private rights, or for the trial of title to lands between conflicting claimants.
It will be seen, by a careful examination of the several provisions of the act, that the mode of proceeding and powers conferred upon the board are legislative, rather than judicial.
They are to proceed, as a body, at once to grant or refuse the permission applied for, or they may appoint a committee to examine the premises and report, and may, without further examination, adopt the report of the committee, if satisfied by it, that the granting of the application will not injuriously interfere with the public right [651]*651of navigation, or they may grant (lie application in a modified form.
Their powers are ampie to enable them to protect the public right from injury, but entirely inadequate for the trial of title to lands, either on documentary or parol evidence.
Their only power of bringing parties before them who may desire to litigate, is to require proof to 1 e filed of the public notice required by the act having been given, as therein prescribed. They have no process to compel the attendance of parties or witnesses, or to swear and examine the latter, should they attend voluntarily, oven upon the public question submitted to them. The proceedings before us in this ease, the unverified maps, the unautheuticatod memoranda of loose conversations, the testimony of witnesses given upon honor, not oath, the unproved title of the plaintiff in error, on which tiie freeholders assumed to act, all show the anomalous character of the whole proceeding, if it be assnmed that the board had the right to decide the matter of title to the shore at the point in question. The further fact that the Supreme Court have in this very case decided (granting their jurisdiction), without one syllable of legal evidence before them, that Brown is not the legal owner of the shore in question—for it needs no argument to show that if the freeholders had no power to verify documents or examine witnesses under oath, that all that appeared before them was in no higher sense evidence than, the proceedings of a public meeting to be found in a daily paper—further show the absurdity of giving to the act a construction warranting the trial of title to lands. Indeed it is clear that the only legal evidence the board have a right to require is an affidavit of the publication of the proper notices, which must be filed before they proceed. When that is done, they may proceed to grant the license by default without examination (unless objection bo made) if the improvement applied for shall not appear to them to [652]*652interfere with the public right of navigation, and to determine this upon their own view, if any examination is necessary.
Can it be. possi de that the legislature ever designed to confer upon the board of chosen freeholders of the county of Hudson the power to decide, for the purpose of determining whether they will hear an application for permission to I uild a wharf upon the construction of a deed, whether certain words in it create a base fee terminable on a certain contingency, or whether the applicant is a remainderman or tenant of the particular estate; whether, by the law of descents, he is entitled to the one-half or whole of the shore in question? To impute such an intention to the legislature is to charge them with want of ordinary intelligence.
There are two sections of the'act which seem to give some countenance to the idea that the title of the applicant is necessarily drawn in question in the proceeding. They are the 5th and 9th sections of the act.
The 5th section provides that the license shall authorize and empower the applicant to erect the dock, and that, when erected, it shall be vested in said shore-owner, in the same manner, and for the same estate, and with the same limitation over in remainder, or otherwise, as the lands along the said tide waters in front of which the same were made may be.
This, upon a cursory reading, would appear to give the improvement to “ the said shore-owner,” that is, to him who made the application. But it is manifest that the whole scope of the section was to leave the question of the existence, quality, quantity, and duration of the estate of the applicant in the dock, entirely unaffected by the granting of the license, and to be dependent upon the title of the applicant, as it might actually be in the shore claimed by him. If he had an estate for life or years, he holds the dock of that estate. If an estate which may be terminated in a day, his right to the dock will continue [653]*653no longer; if ho has no right, no estate in the lands, he will have none in the dock.
The 9th section provides that any proceedings under the act may he removed into the Supreme Court, by certiorari, and be there examined and reviewed upon the law and lads and merits of the case, and that the court may, whenever they may deem it necessary, cause any matter of fact involved in any case to be tried by a jury in such county as they may see flf.
The question at once occurs, what is the object of this provision, if the main question, i. e. the title of the applicant, may not be examined and reviewed? What matter of fact can be involved in the ease? The reply is obvious. The merits of the case may be examined, i. e. the merits of the ease passed upon by the freeholders, both in law and fact, the propriety of their action upon any and every matter which they were competent to decide. The Supreme Court may determine whether, iu their opinion, the improvement does in fact injuriously interfere with the common rights of navigation ; whether the mode of the improvement is right; whether the shape of the dock is such as to conflict with the admitted rights of others; in fact, any matter involved in the decision of the freeholders. They may decide these themselves, or they may leave the decision of them lo a jury, by means of a feigned issue or a suit directed to be brought for the purpose of settling the rights involved in the ease, whether public or. private. Here surely, theuris verge and room enough for the operation of this section, without using it to draw an inference from, that the .board of freeholders may settle abstruse questions of the law of real property.
The question then recurs, could the freeholders, in this case, have lawfully granted this license without legal proof of the title of Brown ? Manifestly they could, both by the express words of the 4th section, and for this unanswerable reason, that unless they could, the act is a nullity; for they could not have proof made before them—proof [654]*654in the legal sense, I mean—because no mode is provided. They have none of the ordinary powers of a court to lake proof; even the affidavit spoken of in the act must be sworn to before some officer competent to administer an oath ; they could not administer it.
If the power to take proofs and examine witnesses does not exist in this body—was not given to them by the legislature —can it be for one moment pretended that their action is void for want of it? It is equally clear, that if the license may be granted without any proof, the sufficiency of what I called in this proceeding proof before them, is a matter entirely immaterial; if none is necessary, any quantity more than that is sufficient.
The judgment of the Supreme Court, avoiding Brown’s license because of want of sufficient legal proof before the freeholders, was, in this view of the case, entirely erroneous. It cannot be avoided for any such reason by the Supreme Court on certiorari. The granting of the license to Brown conferred on him no right to dock out, unless lie was t'ne owner of thé shore, and is of no use to him, unless he is. His license is conditional, dependent upon his title.
If he should undertake, under that license, to build the improvement authorized, neither the state or any person claiming under the public right of navigation could interfere to stop him, or claim the benefit of the completed improvement; but it would be no protection against the legal owner of the shore.
No proceeding under the act before the freeholders can, in any sense, settle the title to the shore, or divest it from any owner. The consequence of such a construction would be disastrous, and all the provisions of the act may have full operation without it.
The license amount's to nothing more than a legislative act giving permission to a person, alleging himself to be the owner o'f a certain shore, to dock out, as' therein prescribed.
B.ut fit may be said, suppose the board of chosen free* [655]*655holders should give a license to the Morris Canal and Banking Company, would not Brown’s license and that of the company conflict? Most certainly they would. If both parties should attempt to build a dock in the same spot, adjoining the same shore, the courts are open, clothed with sufficient powers to settle the conflict; and if they are not, it is better that legislative aid should be invoked than to confer such dangerous powers upon a political body by unnecessary inference.
Enough has been said to show the judgment of the court below erroneous in declaring the license void for want of proof before the freeholders. What judgment ought this court to give? This depends upon the construction to be put upon the 9Lh section of the act. What was its object? To provide a certiorari to review what had been done by the freeholders upon the case, as it was before them ? Or to give the court plenary power over the subject, upon the facts and merits of the case, as they really were, irrespective of what appeared before the freeholders—to take testimony and examine witnesses as to the title of the applicant and all other matters involved in the merits of the Case? It’ that was the design, if the court have such powers, the judgment should be reversed, to be proceeded in according to law, to ascertain, by the intervention of a jury, or by evidence taken before them, whether Albert N. Brown, at the time of the application, was the shore-owner or not; if he was, to affirm the validity of the license, for the mode in which the dock was authorized to be built, and its non-interference with the right of navigation, have not been questioned in this case; if they had been, and the result of investigation showed it to bo an injurious interference with navigation, the license might be set aside for that reason.
It is apparent that the legislature intended the examination of the case on the certiorari should be something different from a mere review of the proceedings for error; that it should be a re-trial of the case, with its whole merits thrown open, or rather a trial for the first time. It [656]*656cannot be supposed (he legislature designed to confine a jury to what was before the freeholders. If that were so, the trial by jury would be a mockery.
This construction of the act will meet the design of the legislature to provide a summary mode in all plain cases of obtaining a sanction for the building of a dock -into tide water, and at the same time guard the public interest in all other cases, a mode for the settlement of conflicting private rights, or of public rights, if involved in the. case; for although a license to one not the owner of the shore might not protect him, or give any estate' or right against the lawful owner, yet to him' it might be an annoyance to which he ought not to be subjected—a cloud on his title, winch, in justice to him, ought to be removed—a colorable license to attack him,.which ought to be declared void.
Such are my views of the true effect of the ninth section; but the decision of the cause does not require a final disposition of this question.
The rule, that a jurisdictional fact must appear upon the face of proceedings of a special statutory character to make .the judgment or proceeding valid, does.not apply to proceedings legislative in their character, had before a body invested with a power, the exercise of which rests in sound discretion.
The judgment of the Supreme Court must be reversed, and the cause be remanded, to be proceeded in according to law.
For affirmance—Judges Combs, Valentine and Risley.
’ For reversal—The Chancellor, Judges Elmer, Haines, Whelpley, Cornelison, Wood and Swain.