Clarke, J.:
This is a condemnation proceeding for the purpose of acquiring title to land upon both sides of the Hai-lem river required for the abutments and approaches of the Willis Avenue bridge. On February 25, 1904, the Special Term made an order denying a motion to confirm the report of the commissioners of estimate and returning said report to the commissioners with instructions. An appeal was taken by the city from said order, which was dismissed upon the ground that as the law then stood, the order not being an order of confirmation, but interlocutory in its character, was not appeal-able. (Matter of Commissioner of Public Works, 111 App. Div. 285; affd., 185 N. Y. 391.)
Thereafter the commissioners filed a further report, and upon a [564]*564motion for its confirmation the Special Term on February .11, 1908, made an order which provided “ that the objections to said report be and the same are hereby sustained,- except as to final damage parcels Nos. 16 and 16A, as to which it appears that said report is made in pursuance of and in compliance with the terms and provisions of the said order of the 25th day of February, 1904 ; and it is further ordered, that the motion to confirm said report, except as to said parcels Nos. 16 and 16A, be and the same is hereby denied; and the Clerk of this Court is hereby directed to return said report as to final damage parcels Nos. 12, 14 and 15 ” to new commissioners, naming them, “ for amendment and correction, with instructions to make the same in conformity- with the terms and provisions of the said order of this Court dated February 25, 1904, and filed as aforesaid ; and it is further ordered, that the said report of said commissioners in relation to final damage map parcels Nos. 16 and 16A be and the same is hereby in all respects confirmed.”
The city appeals from each and every part of the said order ás well as from the whole thereof, and in its notice of appeal attempts to bring up for review the order of February 25, 1904, the direct appeal from which had once been dismissed as aforesaid.
By chapter 658 of the Laws of 1906, the provisions of the Greater New York charter relating to the opening of streets and parks were amended. Section 14 thereof amended section 988 of the charter (Laws of 1901, chap. 466) so as to read : “ The City of New York or. any party or person affected by the said proceeding and aggrieved by the order of the Special Term entered on the motion to confirm the said report or reports, or either of them, may appeal to the Appellate Division of the said court; ” and section 33 of the said act of 1906 provided: ‘ The provisions of this title shall apply to all pending proceedings where the duty or duties herein or heretofore imposed or act or acts heretofore required to 'be done have not been performed.”
By chapter 147 of the Laws of 1894, authorizing the construction . of the Willis Avenue bridge, it was provided (§.4, as amd. by Laws of 1897, chap. 664) that “ The provisions of law relating to the taking of private property for public streets or places in- the said city are hereby made applicable, as far as maybe necessary, to the acquirring of the said land as aforesaid.” Therefore, the amendment to [565]*565the street opening act made by chapter 658 of . the Laws of 1906, governing the practice on appeals, affects this procedure. (Matter of Commissioner of Public Works, 111 App. Div. 285.) And the order appealed from having been entered on a motion to confirm the report of the commissioners is appealable if the city of New York, the appellant, has been aggrieved thereby. In any event, it is appealable in so far as it confirmed the award for damage parcels 16 and 16A, for as to such- parcels it was a final order confirming the report of the commissioners.
The city claims the right upon this appeal to review the order of Mr. Justice Truax of February 25, 1904, and asks this court .to reverse that order and confirm the report of the commissioners then before the Special Term. This cannot be done. When made the order was not appealable, and when the statute was amended, the time in which an appeal could be taken from such order had long since expired. I think we must be confined to the consideration of Mr. Justice Guy’s order. In so far as he refused to confirm the report of the commissioners and sent the report to new commissioners with instructions, it was an order made on a motion to confirm a report, and if the city claims that such report should have been confirmed, and in so far asxit was not confirmed, the city was a party aggrieved and, therefore, rightfully appeals.
I think so much of this order as directs the report to be sent to new commissioners was improvident, and should at least be modified. The order of Mr. Justice Truax provided “That the said report of the sa'id commissioners (that is, the first report) in reference to the awards made for Final Damage Parcels Nos. 16 and 16A’ * * * be and the same is hereby returned * * * with directions to report the full absolute fee value for said Final Damage Parcel No. 16A * * * with improvements, and to make the said awards for said Final Damage Parcel No. 16A * * * to unknown owners; and also to allow to the owner of Final Damage Map No. 16 * * * the value of said parcel taken without deduction for benefit to the land not taken. * * * In reference to the award made for Final Damage Parcel No. 12 * * * with instructions to make an award for said Final Damage Parcel No. 12 in the same relative proportion as that made for Final Damage Parcel No. 13. * * * In reference [566]*566to the awards made for Final Damage Parcels hi os. 14 and 15 * * * with instructions to allow the owner of Final
Damage Parcels líos. 14 and 15 the value of the property taken, without deductions' for benefits to the land not taken, of which -parcels líos. 14 and 15 were originally a part. And it appearing by the opinion of the said commissioners accompanying their said report that in making their award for the parcel lío. 15 they had deducted from their preliminary award for said parcel the sum of $24,850, - which they had 'allowed for wharfage rights assumed to have been taken from the owner of said parcel under the law providing for this improvement, and had also deducted the valué of a pier and of land under water, stated in said opinion to belong to the city, and counsel for Mary Anna Palmer Draper, the owner of the' said parcel, having applied, upon the hearing of said motion for confirmation, for an order' directing the said commissioners to inform the court, by supplemental report or otherwise, as to how mueli of the said sum of'$24,850 they had deducted as. aforesaid for wharfage, how much thereof for said pier, and hoW much thereof for said land under water, it is further ordered that the said commissioners in the amended, revised and corrected report to bo made by them in pursuance of this order shall specify separately the respective amounts.so allowed by them for each of the items aforesaid, aggregating together the sum of $24,850.”
The commissioners, in their supplemental report, attempted to comply with this order. The order of Mr. Justice Guy sends the report to new commissioners, not for the purpose of ascertaining the value of this property de novo, but requiring the new commissioners to analyze the figures, the processes and the methods of thought by means of which the old commissioners had arrived at the conclusion expressed in their report, and of telling the court how the old commissioners did so arrive. This seems to me to be an impossibility, and this part of the order should, in my judgment, be reversed, and if the matter is to go back at all, it should be tó the old commissioners upon the ground that their award is not sufficient. I doubt the propriety in these condemnation proceedings of requiring a precise statement of the steps by which an award is arrived at, but Mr. Justice Truax’s order so provided, and the corm missioners have undertaken to obey it by stating what they did, and [567]*567after that statement it seems to me the question is, should the award, the purpose of the proceeding, be confirmed or refused confirmation upon the ground that it is too large or too small. •
As to the Swift property, parcels Mps. 16 and 16A. In their original preliminary report the commissioners- allowed for Mo. 16, “ land, buildings and improvements,” $37,473.31, and in their final report, $9,706.26. For 16A they named the city as the owner of the “land,” and gave no value. Mr. Justice Truax ordered them to report the full absolute fee value of said final damage parcel Mo. 16A, with improvements, and to make the said awards for final damage parcel 16A to unknown owners; and also to allow to the owner of parcel Mo. 16 the value of the parcel taken without deduction for benefit to the land not taken, of which said parcel was originally a part. In their supplemental and amended report they allowed to the Swifts for Mo. 16, land, buildings and improvements, $9,706.26, and to “unknown” for Mo. 16A, land, buildings and improvements, $27,765.06; and they said in their report: “ Parcels Mos. 16 and 16A. In this case the items of the amount of $27,765.06, appearing in our preliminary report, and deducted from our final report, and which, by the order of the court, we are directed to make to unknown owners are as follows:
“ Beef house.......................... $13,403 56
Land under pier..................... 8, 261 50
Building'......... ...'..... ........ 2, 350 00
Pier, two-thirds..................... 2, 000 00
35 feet bulkhead..................... 1, 750 00
$27,765 06"
The' sum of $2,350, the value of the shed owned by the Swift Company, we deducted from our preliminary report for the reason, as stated in our opinion, that while there was no question that the Swifts owned the shed, nor Was there any contention to the contrary made before us, the right to continue such structure was revocable at the pleasure of the city authorities, and, therefore, no award could be made for it; that if any award was made it should be to the Swift Company as the owners.”
Counsel for the claimants Swift concede that the supplemental report as to the parcels 16 and 16A, claimed to be owned by them, [568]*568conforms precisely to the order of Mr. Justice Truax .sending the report hack for revision. The city’s claim is that the original report was correct, and tliat as title to 16A was in the city,, no award should have been made -therefor. The Swifts claim that the property included in that parcel, being included in tlxe description of the lands to be taken, and there being a dispute- as to the. ownei’ship. of said parcel, it was the duty of the commissioners to ascertain and report its value, and to make an awai’d to unknown owners, because the title being in dispute, no power was vested in .the commissioners to. detei’mine that contx-ovex-sy. I' think tlxis position is cox-rect. When there is a controvex-sy over the ownership of -the land, it is the dxxty of the commissioners to fix the value thereof, which, upon confirmation, becoxnes conclusive upon all parties; but they have no jurisdiction to determine disputed questions of title, and, tlxei’efore, the order appealed from, in so far as it confirms the report of the cominissionei’s in respect to parcels 16 axxd 16A, should be affirmed without here considering the particular questions as to title involved, which must be tried out in an appropi’iate proceeding brought for that- pui-pose;
So far as damage parcel Ho. 12 is concerned, belonging to the Johnston estate, the appeal by the city will only lie in case it is considered that; the order of Mr. Justice Guy, refusing confinnation as to this parcel and sending the report to new commissioners to make an award for said parcel in tlxe shine relative proportion as that made for final damage parcel Ho. 13, is appealable because the city was aggrieved in tlxe'refusal of the court to confirm as to said pai'cel. Tlxe Johnston estate had a frontage of 322 feet on One Hundred and Twenty-fifth street and 29|- feet on Fix-st avenue. The' city took from this property 35 feet of the One Hundred and Twenty-fifth street fi’ontage, so that the Johnston property was left with 287 feet front on One Hundred and Twenty-iiftlx street and 57 feet 9 inches on First avenue. - The commissioners, in their original preliminary award, allowed $5,051, and in their final award $5,301, the additional $250 being for the improvement on the property. In their supplemental report they allowed $11,763.85, and say: “ In accordance with the order of Mr. Justice Truax we now fix the damage to parcel Ho. 12, 1,525 square. feet, at $7,714 per square foot, axnounting to $11-,763.85, which is at the same pi'ice [569]*569per square foot as the award made for final damage Mo. 13, assuming as we do, that by ‘ same relative value ’ the court intended to direct us to fix the value of the land taken at the northeasterly corner of 1st avenue and 125th street at the same rate per square foot as the part of the lot taken at the northwesterly corner of said street.”
The Johnston estate is quite content with this award, but thinks that the order of Mr. Justice Guy should be reversed because the report ought to have been confirmed; but it has not appealed.. Counsel states that if the whole matter can be considered upon this appeal its award is satisfactory. This illustrates the position that this court is in in attempting to find out what there is to review and to make the appropriate decision.
The commissioners claim to have done exactly what they were told to do by the order of Mr. Justice Truax, namely, to value this parcel of land in the same relative way that they valued another parcel of land on the opposite corner of the $ame street; and they say that they valued that property at a certain number of dollars per square foot, and applying that ratio to the number of square feet in this parcel of property they arrived at the result set forth. The Special Term said they, have misunderstood what Mr. Justice Truax directed them to do, and has sent the whole matter to new commissioners to carry out the directions of the order of Mr. Justice Truax without any interpretation by it of what it thinks the order of Mr. Justice Truax meant. The rule to be applied is that “ in no case should an award be made for less than the value of the property' actually taken by condemnation.” (Matter of City of New York, 190 N. Y. 350.)
The Draper claim consists of two parcels, 14 and 15.
Parcel 14 consists of upland, a plot at the southwest corner of One Hundred and Twenty-sixth street and First avenue, 35 feet on the street and 149.833 feet on the avenue, containing two and ninety-eight one-Iiundredths city lots, and is the front' 35 feet of six city lots fronting on First avenue. The commissioners awarded in their original report $24,300. The order of Mr. Justice Truax, sending back the report, instructed the commissioners to allow the owner the value of the property taken without deductions for benefits to the land not taken, of which parcel Mo. 14 was originally a [570]*570part. In their supplemental report the commissioners returned the same amount and said-: “ In. making their awards for land south of the Harlem Hiver no deductions whatever for benefit were made as erroneously asserted by counsel for the property owners and tacitly admitted by the corporation counsel.” They state they made up their award for parcel 14 as follows: For the two southerly lots, 25 feet by 100 feet, they fixed the value of each before taking' at $9,500, and as 35 feet was taken, they allow fifty per cent of the full value for damage, $9,500. As the next four lots are backed by a lot in the same ownership of - 25 feet by 100 feet facing on One Hundred and Twenty-sixth street they say there should be allowed only thirty-five per cent damage and they awarded by -square feet; - - that is, 35 feet by 100 .feet equals 3,500 square fe'et, and Valuing the corner lot at $13,000, the next at $9,500 and the remaining two at $8,500 each, makes a total value of the entire plot of $38,600, or $3.86 a square -foot, making for the 3,500 square feet $13,510, to which should be added $1,585 for damages suffered by the property owners by reason of -the fact that the property remaining would consist of four lots and that these front on First avenue, but would be reduced to 90 feet in depth, making a total of $24,595, which, however, does not agree with the amount of $24,300 stated in the report.
The theory of the commissioners was that this piece of property, being all in one ownership and not improved, they had a right to. consider it in its entirety and to add the 25 feet front on the side street by 100 feet in depth to the rear of the lots on the avenue so as to leave four lots of 25 feet frontage by 90 feet in depth, rather ’ than four lots on the avenue of 65 feet in depth, and one on the street of 25 feet frontage and .100 feet in depth.
We are dealing with city property, divided into city lots for purposes of taxation and treated as such in every day real estate transactions. _. It seems to me that when the commissioner's arbitrarily destroyed the One Hundred and Twenty-sixth street lot by dividing it into four parcels and tacking each one of those parcels onto the avenue lots so as to create avenue lots of ninety feet in depth instead of sixty-five feet, as they were when the city took the strip of land-from the avenue front, they have considered benefits in violation of the rule laid down by the Court -of Appeals in Matter of City of New York (190 N. Y. 350), In that case as [571]*571to two pieces of the company’s land, parts only of such pieces or tracts were sought to be acquired by the city. While the commissioners found that such parts were of substantial value, they also found that the benefit which would accrue to the remainder of such tracts was greater than the value of the lands taken, and hence they made the company no award therefor. This was declared to be error, the Court of Appeals holding that in no case should an award be made for less than the value of the property actually taken by condemnation.
We have held that in the outlying portions of the city, where land has not yet been mapped and laid out in city lots, where a small strip was taken on widening a road, the whole property may be properly taken into consideration (Matter of City of New York. [ Westchester Ave.], 126 App. Div. 839),. but we think that such rule ' as was followed in this case applied to city lots would be to reduce damages by taking into consideration direct benefits by arbitrarily treating a street lot as converted into the rear portion of an avenue lot. As the commissioners have clearly stated the rule adopted by them in obtaining the result by them reported and as that rule seems to us to be erroneous, it was not error to refuse to confirm their report as to this parcel.
Draper claim, parcel 15, consists in part of upland and in part of land under water comprising 25.644 city lots and being part of a large tract lying on both sides of First avenue, if extended, and including the bed of the proposed extension of First avenue. It has a water front of 1'70 feet. For this parcel the commissioners made a preliminary award of $192,930.24. In their final report .this was reduced to $168,080.24, a reduction of $24,850. They stated that the preliminary award was based upon the erroneous assumption that the one pier taken and the land under it belonged to Mrs. Draper and upon the further erroneous assumption that respondent was entitled to compensation for wharfage rights appurtenant to the property. In their original final report they state, “ deducting what we had allowed for the wharfage rights assumed to have been taken from her under this law, and .deducting also the value of thé pier and land under water belonging to the city, we feel obliged to diminish our preliminary award by the amount of ” $24,850, Mi’, Justice Truax refused to confirm the report in [572]*572respect to parcel 15 and directed the commissioners to inform the court by supplemental report or otherwise as to how much of said sum of $24,850 they had deducted, as aforesaid for wharfage, how much thereof for said pier, and how much thereof for said land under water and that said corrected .report should specify separately the respective amounts so allowed by them for each of the items aforesaid aggregating the sum of $24,850.
In their supplemental report the commissioners said : “Theitems of the amount of $24,850 deducted from our preliminary report for , the reasons stated in our opinion accompanying our final report, are as follows: Deduct land under pier' and pier (all but 1 per cent belonging to city), $12,850; bulkhead value of lots 14,. 15, 16 and 17 at $3,000 each, $12,000.”
The commissioners also said in their minutes: “ Referring to the . item of $12,850 the commissioners state that they did not make deductions separately for the pier and for the land under the pier under 'water, but considered them as a unit ánd their valuation as inseparable and made their, award accordingly.” The counsel for Mrs. Draper complains that the commissioners should have separated, the amount they deducted for the pier'and for the land under water under the pier, and further claims that if Mrs. Draper had no right to this $24,850 the commissioners should have awarded it to unknown owners; that the pier either belonged to the city, standing partly upon land claimed to be owned by the city, to wit, land under- water east of the low-water line, or it belonged to Mrs. Draper, standing partly on land between the high and low-water mark which had been conveyed to her predecessors in title by the grant of 1808; that the wharfage rights attached to parcel 15 and were appurtenant- thereto; that these wharfage' rights, this pier and the land tinder, water were taken in this proceeding and that as they were taken it was the duty of the commissioners to make an award for them and if there were disputed claims as to ownership to make the award to unknown ownérs.
We think in this latter claim he is fully, justified, as we have' held in regard to the Swift claim; as the property was. included in the proceeding and there was a dispute as to ownership, and as the commissioners had no jurisdiction to try. title, it made no difference whether the dispute was between the city and private [573]*573owners or between,two private owners; in either event the actual value of the property should have been ascertained and reported and the award made to unknown owners, such dispute to be thereafter settled in the manner provided by law. So that as to this parcel we find no error in the refusal of confirmation.
The technical conclusion, therefore, which I have arrived at in considering the appeal from the order is that in so far as it confirmed the awards to parcels 16 and 16A; and in so far as it refused confirmation to the other parcels, it was correct; but that in so far as it sent the report back to new commissioners and required of them an impossibility, it was error and that the order should be modified by striking out said provisions in regard to new commissioners and providing that the report be referred back to the former commissioners to make a report in accordance with this opinion.
I have not yet touched the real matters in controversy, discussed extensively in the briefs, attempted to be solved upon the former appeal (111 App. Div. 285), and again threshed out on this appeal, because from the peculiar character of the order appealed from it did not seein that such questions were really before us. But that an end may be put to this litigation, we have concluded to express our views for the guidance of the commissioners.
First as to the Draper claim. On October 21, 1808, the city granted to Benjamin S. Judah, who owned the upland, “All that certain water lot, vacant ground and.soil under water to be made land and gained out of the Harlem river, between high and low-water mark on the westerly side of said river [descz-ibing it by metes and bounds]. (Saving and reserving nevertheless to the said parties of the first part and their successors out of the premises hereinbefore described, so much land as will be necessary to make a street of 40 feet wide on the outward part of the soil hereby granted) ” for a reserved yearly rent of six dollars and forty-nine cents. The covenants for the payment of rent were subsequently released. Ho right of wharfage or cranage was granted. The city at that time owned the tideway, the land under water between high and low-water mark. The effect of the reservation of the forty-foot strip on the outward part of the soil granted was that-the fee thereof remained in the city whether the street was thereafter constructed or not. As was said by Van Brunt, P J., [574]*574“ A grantor wlm states in his deed that he excepts a certain portion of the land because he wants it for a certain purpose, cannot be held to have conveyed that which he has expressly excluded because he afterwards devotes it to a different. purpose.”’ (Mayor, etc., v. N. Y. C. & H. R. R. R. Co., 69 Hun, 324; Consolidated Ice Co. v. Mayor, etc., 53 App. Div. 260; affd., 166 N. Y. 92. See, also, Langdon v. Mayor, etc., 93 N. Y. 149 Mayor, etc., v. Law, 125 id. 380.) ' As there was no grant of wharfage or cranage the city upon subsequently obtaining land further out than the limits of this grant could have extended and improved the water front for commercial purposes without compensation. (Sage v. Mayor, etc., 154 N. Y. 61.)
.Chapter 285 of the Laws of 1852 provided that“§l. It shall be lawful for the mayor, aldermen and commonalty of the city of Hew York to layout and fix a permanent exterior street, along the shore of the Harlem river in the city of Hew York, between the East river or sound and the Horth or Hudson river, and to cause a map thereof to be made. and. which map when approved of and ratified by the skid the mayor, aldermen and commonalty, shall be,filed in the office of the street commissioner of said city. §• 2. The several streets and avenues of said city as laid out on the- map • or plan made by the commissioners appointed by the act ' * *• * passed April third, eighteen hundred and seven, or as subsequently established by law, shall be continued and extended 'along the present lines thereof, from their. present terminations on the said map or plan respectively to the said exterior street and permanent line. § 3. The mayor, aldermen and commonalty of the city of Hew York shall be, and they are hereby vested with all the right and title of the People-of this State, to the lands covered with water along the shore of the said Harlem river, from the East river or sound to the Horth or Hudson river, and ' extending from low-water mark to and including the said exterior street or permanent line.” By section 4 the proprietors of the uplands were given the pre-emptive right in all grants which may be made by the city of the lands under water granted by the act adjacent to and in front of the said lands under water theretofore granted by the city. . .
Three things were accomplished by this act. ' The title in the [575]*575land under water beyond low-water mark theretofore vested in the State was transferred to the city to and including the exterior street or permanent line; the city was authorized to lay out a permanent exterior street; and the streets as laid out or as subsequently established by law “ shall be continued and extended * ■* * to the said exterior street and permanent line.”
Chapter 763 of the Laws of 1857 established the bulkhead lino of line of solid filling and the pier line. Section 2 thereof provided: “It shall not be lawful to fill in with earth, stone or other solid material, in the waters of said port beyond the bulkhead line or line of solid filling hereby established; nor shall it be lawful to erect any structure exterior to the said bulkhead' line, except the. sea wall mentioned in tiie first section of this act, and piers which shall not exceed seventy feet in width, respectively, with intervening water spaces of at least one hundred feet; nor shall it be lawful to extend such pier or piers beyond the exterior or pier line, nor beyond or outside of the said sea wall.” Under the authority of the act of 1852 the so-called Southard map entitled “ Map of the Exterior Street in the City of Mew York, along the shore of the Harlem River from Eighty-ninth street ■ on the East River, to ¡North or Hudson River, laid down in conformity with the exterior line as established by the Harbor Commissioners by virtue of an act of the Legislature passed April 17, 1857,” with the approval of the mayor October 29, 1859, was filed. This map exhibited an exterior street seventy feet wide, and this seventy feet in front of the Draper property overlapped the outer edge of the old forty-foot strip about three feet. Upon this map, as required by the act of 1852, the streets and avenues as laid out on the map of the commissioners for laying out the city under the act of 1807 (Chap. 115) or as subsequently established by law were continued and extended to the said exterior street, namely, One Hundred and Twenty-fifth, One Hundred and Twenty-sixth and One Hundred and Twenty-seventh streets and First avenue. The title to so much of said streets and avenues so extended ás were embraced in the forty-foot strip reserved in the Judah grant was and remained in the, city because the fee of said strip so remained. So much of said seventy-foot street as was beyond the low-water mark was on the land of the city granted by the State in said act. “As the city then owned in fee the land upon which all, [576]*576or nearly all, its streets were constructed, and as it was the settled policy of the city to condemn or purchase land in fee for its streets, it cannot be supposed that it meant to depart from the usual course in this grant and actually convey away the fee of the land needed for streets.” (Mayor, etc., v. Law, 125 N. Y. 380.)
This being the condition of fact and law, on August 11,1870, the city granted to Courtlandt Palmer, Mrs. Draper’s father and predecessor in title, a certain lot of land under water by metes and bounds, whicli commenced at the original line of low water and extended out to. the harbor commissioners’ bulkhead line about sixty-seven feet in depth and lying immediately in front of the Judah grant then owned by said Palmer. “ Saving and reserving out of the hereby granted premises so much thereof as may form part of any street or streets, avenue or avenues, that may now or hereafter be assigned or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways as hereinafter mentioned, or which are now in use as such.”
Said grant provided that within three months after being thereunto required by the city Palmer and his successors .would build at his own cost bulkheads, wharves, streets or avenues and maintain them, which should be public streets, and in default the city could ■ build such streets and bulkheads on account of Palmer, or sell the premises granted; that Palmer would not build said wharfs .and streets until permission had been obtained from the city, and would not build any pier or obstruction in the Harlem river in front of the granted premise's without the city’s permission. Wharfage and cranage was granted excepting from the bulkhead at “ the foot of any street or avenues which are laid out through the premises hereby granted, which .said wharfage, cranage, advantages and'emoluments shall be and are hereby reserved for the said party of the first part, their successors and'assigns, with full power to collect and receive the same for their own proper use and benefit forever. * * * And the said party of the first part hereby releases and discharges said party of the second part, his heirs and assigns from the covenants and provisions contained in said hereinbefore mentioned grant to Benj.'.S.- Judah relative to a street of 40 feet in width therein proposed to be made on the outward part of said grant, such then proposed street having been superseded and the strip of land in such [577]*577former grant is hereby released and quit-claimed to said party hereto of the second parí, his heirs and assigns, subject, nevertheless, to the covenants and conditions in this present grant contained.” Counsel for Mvs. Draper concedes that the reservation in this grant contained operated to reserve the land lying within the seventy-foot strip — the exterior street laid down on the Southard map. The Court of Appeals in Consolidated Ice Co. v. Mayor (166 N. Y. 92), said: “ The lands embraced within the lines of Exterior street wej'e not, therefore, conveyed to the plaintiff’s predecessor in title by the grant of 1870.”
We think that so much of. First avenue and One Hundred and Twenty-seventh street, continued and extended on the Southard map by force of the act of 1852, as lie within said forty-foot strip, were not released. What was intended to be released was so much of the forty-foot strip as had been superseded as a street by the new exterior street beyond iff It was not intended and could not have been intended to cut off access to said exterior street through these streets of approach. First, the intention of the Legislature was clearly expressed, because it provided that these streets should be continued to the exterior street to form approaches thereto; second, the understanding of that purpose by the city was expressed by the Southard map, which did that very thing, and, third, the grant to Palmer itself in unmistakable language expressed the intent of the city when it granted wharfage and cranage to Palmer except “ at the foot of any street or avenues which are laid out through the premises hereby granted,” First avenue and One Hundred and Twenty-seventh street then being such streets or avenues. I do not think the city intended to grant the fee of so much of said streets as lay within said strip, and I do not think it had the power so to do. The grant is to be construed as of the time when made, and the conditions then existing, that is, the connecting streets extended and a new street contemplated.
The matter of the pier will be hereafter considered.
As to the merits of so much of the Swift claim as is included in final damage Ho. 16 A. On Hovember 30,1866, the city conveyed to Daniel F. Ingraham, then owner of the upland and abutting and, “ All that piece of land lying between high-water marks and [578]*578the bulkhead line as now established of the Harlem River in front of the upland owned by the said party of the second part between 126th and 128th streets,” describing it by metes and bounds, “ Saving and reserving out of the hereby granted premises so much thereof as may form part of any street or streets, avenue or avenues that may now or hereafter be designated or laid out through said premises according to law for the uses and purposes of public streets, avenues and highways hereinafter mentioned-.”
Two years after said grant the Legislature passed chapter 150 of the Laws of 1868, which provided that “ It shall be lawful for the ■proprietors of grants of land under water in the Harlem river, •between the termination of the Second avenue and the East river, instead of building an exterior continuous bulkhead, as now laid out by the harbor commissioners, to erect piers and wharves therein, and to excavate the slips between the same, but in no case shall any such pier or. wharf be extended into the river further than the said exterior line as fixed by the said harbor commissioners.”
On March 16, 1871, the board of docks upon petition adopted a resolution giving permission to ' Judge Ingraham “ to build piers out to the harbor commissioners’ bulkhead line from 125th to 128th streets, Harlem River, such permission to be subject to any alterations which the Department.of Docks may by law be empowered to . make in said district, and without any expense for damages against said department.” The improvements contemplated comprehended a bulkhead to be built a considerable distance inside the established .bulkhead line and from said bulkhead to extend the piers into the river. Hnder the act and this permit Judge Ingraham improved the property by building substantial piers, with bulkheads, and between the piers excavated slips sufficiently to allow boats to land at the bulkheads and at the sides of the piers. Ingraham was the . predecessor in title to the Swifts, and their deeds expressly excluded conveying or intending to convey any portion of One Hundred and Twenty-seventh street.
Counsel' concedes that the grant of November 30, 1866, to Ingraham of the land under water reserved or excepted the fee of the land included within the boundaries of the' exterior street laid out .by the common council in’ 1859 ; he claims that the Swifts do not base their title upon the water grant, but upon the act of 1868, [579]*579which was effectual to vest title in Ingraham to the land when he constructed the pier, bulkhead, slips, etc., thereon, the argument being that the State in 1868 had the power to grant to the proprietors, namely, the upland owners, an absolute right to construct wharves and piers upon the land under water of the Harlem river, notwithstanding the act of 1852, providing for an exterior street along the shore of that river, and granting to the city the title to the land included thereon.
In the Consolidated Ice Co. Case (supra), the Court of Appeals, after deciding that the lands embraced within the lines of Exterior street had not been conveyed, said : “It does not necessarily follow, however, that the plaintiff has not acquired some rights of user in the waters adjoining the lands conveyed and which were annexed to it by the act of 1868, authorizing the construction of piers and wharves and the exc'avation of slips between them; but that question we do not pass- upon, as it is not before the court for determination.”
I have reached the conclusion that while the title to the land under water, which was vested in the city by the act of 1852, was not divested by. the act of 1868, that, being upon a navigable stream, it was held for the same public trust's that it had been held prior to the act of 1852 by the State in the public interests. The nature of this title, both in the State and as conferred by it upon the city, is set forth in Matter of City of New York (168 N. Y. 134), the Speedway case, with a full citation of authorities. When the State authorized the proprietors of the water grants, in the interests of navigation and commerce, to erect piers and dig out slips, and when the city, by its dock department, granted its permission, and when, acting under such authority and permission, Ingraham built the pier and dug out the slip, expending his money therefor, I think he acquired property rights which could not be taken from him without due compensation. Whether this permit from the dock department should be considered a revocable license because of the provision therein contained, “ subject to any alterations which the Department of Docks may by law be empowered to make in said district,” or not, it seems sufficient to say that' the department of docks has made no such alteration in said district, and has not revoked said license by any act done by it.
[580]*580This property is being taken by authority of law for an entirely, different purpose, to wit, for the foundations and bridge across the river, and is in no sense an aid to the navigation thereof, but an obstacle thereto, even if it be a drawbridge, and the'law which authorized it and the petition which institnted the proceedings provided for the acquiring of title to the lands and premises, rights and easements required.
. A valuable right which has been in existence since the year 1871 is being destroyed for the purpose of a public improvement. . Here easements of the light, air and access in the public streets, have been held in innumerable cases in this State to be property rights and for the destruction thereof the courts have compelled the-payment of vast sums of money.
In the Speedway case, cited supra, it was conceded that the title in the tideway vías in-the city; that the title of the proprietor of the upland extended to high-water mark; that while he did not own the tideway or the lands under water beyond the same, he had the easement of passage and the transportation of merchandise to and fro between the navigable waters, to fish and to draw nets, to land and to load and unload boats. These privileges are absolute property rights as against all but the State. The State holds the title in fee in the tideway and to the lands under water beyond .the ' same as trustee for the public, in its organized capacity.' As such trustee and in the' exercise of its governmental functions it may improve the-tideway or the adjacent waters for the benefit of navigation, even to the detriment of abutting upland owners, and without compensation to them. But as the speedway which was erected in front of the appellant’s property was limited in its use to certain ' vehicles and cut him -off absolutely from the .river, the court said: “ It is unnecessary to inquire whether the appellant would be entitled to compensation for loss of-his riparian' easements if the munic: ipality had laid out and constructed in the tideway a general street open to commercial .traffic. * * * Nor are we concerned witli the extent of appellant’s alleged loss. * * * It may even be, as suggested, that the appellant’s lands are more valuable now than they were before the construction of the £ speedway.’ * * * * The fact remains that the question whether the appellant has been injured by the taking of his riparian easements and the extent of [581]*581his injuries, if any, has never been passed upon. He was entitled to have that question decided, and the refusal" of the commissioners to consider it was error.”
There was a mere riparian right, it being conceded' that the appellant’s land stopped at the high-water mark and that the title to the tideway was in the city. In the case at bar the title tti the seventy feet reserved in the city’s grant remains in the city, but for purposes of navigation the State and the city have authorized the erection thereon of a pier. ;
In Bedlow v. Stillwell (158 N. Y. 292) the court said: “ Although the pier was erected upon land under water which belonged to the State, yet it was erected under and in pursuance of a statute and by the permission of the city authorities, and that under such circumstances id became attached to the realty and part and parcel of it. * * * The permission * • * * to construct at
their own expense this pier, which became appurtenant to the wharf, was something more than a mere license revocable at the pleasure of the State. It was a right to usé and maintain the pier in perpetuity, and neither the city nor the State could lawfully deprive the owners of its benefits without just compensation.”
In Matter of City of New York, Pier No. 15 (95 App. Div. 501), where a permit had been given to shed a pier in 1883, after -the passage of the shedding act,, which permit did not upon its face state that it was granted during the pleasure of the commissioners or contain any other statement tending to show that it was revocable, this court held that no authority was given to the dock department to revoke such license when once given, and that when the city of Hew York, exercising the power of eminent domain, commenced a proceeding to acquire title to the property, it was a property upon which the appellants were entitled to maintain this structure, and it was the value of that pier with the right to maintain this structure to which the appellants were entitled, and the report was sent back. On the second" appeal the order was affirmed on the former opinion, McLaughlin, J., dissenting. (113 App. Div. 903.)
It was affirmed (185 N. Y. 607), the court saying: “While we do not assent to the doctrine that the right of the pier owners to an exclusive use of the pier as a shedded pier, and to be relieved of the burden of having vessels put in at the wharf was beyond legis[582]*582lative repeal or modification, still as at the time this property was . . acquired by the city no such repeal had been made, the value of the property was to be estimated under the existing conditions of the law. While the report states that the award was made upon the theory of the right being in perpetuity, still the entire record discloses that it was made in accordance with the true rights of the parties. The order should be affirmed.”
It would seem, therefore, that the valuable.property right in this pier taken hy proceedings not in the interest of navigation but for other public purposes ought to be paid for, and that the value of that right so taken should be appraised by the commissioners.
The Draper claim is slightly differentiated in that the grant of 1870 was made after the act of 1868 which authorized the building of piers. But both Palmer and Ingraham asked permission from the dock department at the same time, and the resolution aboye cited gave permission to both petitioners by name, and they conducted their improvement, at the same time'and upon a common plan. I think Draper’s pier, as a pier erected under legislative authority arid by municipal permission, stands in precisely the same situation and should be treated as an existing property right and valued according. ■
My conclusion as to the Draper claim is this: As to the forty foot street reserved by the Judah grant, the title did not pass to her predecessor in title but remained vested in the city, until by the. grant of 1870 it was released to her. At that time, however, by tlie act of 1852 and the filing of the necessary maps, the streets ■ had been extended to the new exterior street, the title of, all of which remained vested in the city.- I do not think she is entitled to recover damages for any portion of such land lying within said' streets as land. So far as the pier is concerned, ,thfs was ■ erected under authority of law, proceeding from the State and the city, and whether the. fee to the land under water occupied by her was in her or not is immaterial. She was entitled to the entire beneficial use thereof which had not been interfered with by any authority, State or city, until the inauguration of this proceeding, and she was entitled to recover the fair value thereof, of which she is by this proceeding» deprived. Her wharfage rights, independent of the pier, I think, will be preserved to her on the [583]*583outer margin of the new street to be constructed (Mayor, etc., v. Law, 125 N. Y. 392), and she is not entitled to recover therefor where they are not interfered with by the erection of the bridge.
The order appealed from should be modified by directing the report to be returned to the former commissioners, with direction to proceed in accordance with this opinion, without costs to any party. • . •
Patterson, P. J., McLaughlin, Laugh lin and Houghton, JJ., • concurred. •
Order modified as directed in opinion, without costs. Settle order on notice.