Goodrich, P. J.:
The defendants own a pier at the foot of Main street, Sing Sing, extending into the Hudson river. It is fifty-eight feet wide. South of defendants’ pier, also at the 'foot of Main street, is a pier sixty feet wide, owned by the plaintiffs, and sejiarated from it by a slip thirty-two feet wide. Both piers extend the same distance into the river.
There is also a slip below the plaintiffs’ pier thirty-two feet wide, and below that a pier also owned by the plaintiffs, which is a hundred feet shorter than the plaintiffs’ upper pier, leaving a large space of clear water. The plaintiffs’ boat is accustomed to land and tie up at night in this slip on the southerly side of their upper pier.
[476]*476Outside of 'tlie piers and extending to the main channel of thfe river, a distance of three-fifths of a mile, are fiats, the water upon which is abouit seven feet deep, and this water is ■ infrequently used by vessels.
Just north of the defendants’ pier is a creek which empties into the river, and, being subject to violent freshets, deposits large quantities of sand on .the fiats and in front of the docks. It is- alleged in the moving affidavits, and declared by the learned judge in his opinion at Special Term, that one object of the addition is to prevent this deposit, and the evidence shows that the addition would do much to prevent it, especially in front of the defendants’ dock, where it shoals the water so as to hinder the moorings of coal boats and barges at the end of their pier, where there is at present only three or four feet of water.
The defendants, as shown by the diagrams in- evidence, began to . build out into the river an addition to their dock, forty feet in length, the northerly line being an extension of the northerly line ' of the pier, the addition to be about fifteen feet narrower than the present pier. There is some evidence that tlie body of the proposed ‘ -dock is somewhat to the south of tlie place shown on the diagram, but the defendants would be concluded by their own maps from any other location if it • were needful to insert such a provision in the judgment.
The plaintiffs own, and' for about ten years have been running daily to their dock, a passenger and freight steamboat, and claim that in going up the river and in docking their steamboat it is sometimes necessary to lap the bow of their boat some five or.ten feet upon the outer or river end of the defendants’ pier, preparatory to warping the boat into its berth on the lower side of their own pier, and that the defendants’ ¡iroposed addition will, seriously interfere with, if not practically destroy, this beneficial use of their own pier, ■and prevent them from warping their boat into the slip, or from landing passengers and freight while moored at tlie end of their pier.
The boat is 140 feet in length, and the plaintiffs’ dock 60 feet in width, the' slip, between the two docks 32 feet, and the slip south of plaintiffs’ pier is 32 feet wide, with open water of 100 feet, and it is somewhat difficult to see why the boat -cannot he warped into its slip without lapping the defendants’ pier, as from the outer lower corner [477]*477of their dock which, is the turning point of the operation, there is over 90 feet of water space for the how before it reaches the lower line of the defendants’ pier, considerably more than one-half the entire length of the boat. If the plaintiffs with a boat 140 feet-in length have the right to prevent the defendants building out their pier, there is no reason why they may not use a larger boat which would cover the whole front end of the defendants’ pier and thus prevent them from occupying the end of their pier, even when they needed to have their own boats moored there for loading and unloading.
The average depth of water at the lower end of the defendants’’ pier is only six feet at low water, while the boat draws about seven and one-half feet light, and something more when loaded. It is. difficult to see how the boat can use this water without grounding her bow in front of the defendants’ dock, except at, or nearly at high tide, the rise and fall of which is three and a half or four feet.
The plaintiffs sometimes land their boat at the end of their pier and unload from a gangplank at the after gangway. Ho reason is shown why they may not unload from the forward gangway, but even when they use the after gangway, the gangplank is ten or twelve feet from the lower line of their pier, and there does not seem to be any necessity for lapping the defendants’ dock, as the lower line of that dock is seventy-eight feet distant from the gangway,, about four-sevenths of the length of the boat.
The learned trial judge at Special Term states in his opinion that “ it would be very difficult at all times, and impossible many times, to bring the plaintiffs’ boat to her dock without running her bow about fifty feet in front of the dock of the defendants.” Ho such claim is made in the plaintiffs’ papers, and as this would bring the stern of the boat above the lower line of the plaintiffs’ dock, we are not able to agree with that part of the opinion.
As the addition laid out. on the diagram leaves a water space of fifteen feet above the lower line of the defendants’ dock, and as the plaintiffs only claim that they lap the defendants’ dock about ten feet, it is difficult, to see how the new structure will interfere with their landing. Hor does it appear why they may not make their landing in their own slip in an oblique direction, or from the north, with the bow heading down the river as is sometimes done.
[478]*478The grant to the plaintiffs’ assignors of lands under water by the . Commissioners of the Land Office was issued in 1874, and was “for the purpose of promoting the commerce of our said State and for no other object or purpose,” and was conditioned upon the erection of a dock' within five years.' The dock appears to have been built in its present shape shortly after the issuing of the grant.
The original grant to the defendants or their grantors is not in evidence, but it appears .that their dock was built about 1876, and it may be assumed that they also had a grant. In 1893 the defendants obtained another grant “-for the beneficial enjoyment.” This grant extends about seventy-five feet beyond the end of the present docks.
There is a difference between these two classes of grants; that for purposes of commerce is limited upon the erection of a dock within the named period; that for the beneficial enjoyment contains no.' such provision arid is apparently perpetual and authorizes the construction of such dock out to the exterior line of the grant as is necessary to beneficial enjoyment.
When the plaintiffs’ dock was erected under their grant, it may be assumed that the grant of lands under water in front, of their upland' became perpetual, but I cannot see that the plaintiffs -acquired any exclusive right in the waters beyond a line running substantially at right angles to their own shore or to the exclusive navigation of any adjacent waters.
If any distinction is to be drawn between the grant to the ' "plaintiffs in 1873, and the grant to the defendants in 1893, it would •seem at least that the defendants’ grant was not inferior to that of 'the plaintiffs.
Both parties built their docks the same distance out into the river, -and thus acquired rights, but the defendants have now obtained an •additional grant under which they claim the right to build their proposed dock.
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Goodrich, P. J.:
The defendants own a pier at the foot of Main street, Sing Sing, extending into the Hudson river. It is fifty-eight feet wide. South of defendants’ pier, also at the 'foot of Main street, is a pier sixty feet wide, owned by the plaintiffs, and sejiarated from it by a slip thirty-two feet wide. Both piers extend the same distance into the river.
There is also a slip below the plaintiffs’ pier thirty-two feet wide, and below that a pier also owned by the plaintiffs, which is a hundred feet shorter than the plaintiffs’ upper pier, leaving a large space of clear water. The plaintiffs’ boat is accustomed to land and tie up at night in this slip on the southerly side of their upper pier.
[476]*476Outside of 'tlie piers and extending to the main channel of thfe river, a distance of three-fifths of a mile, are fiats, the water upon which is abouit seven feet deep, and this water is ■ infrequently used by vessels.
Just north of the defendants’ pier is a creek which empties into the river, and, being subject to violent freshets, deposits large quantities of sand on .the fiats and in front of the docks. It is- alleged in the moving affidavits, and declared by the learned judge in his opinion at Special Term, that one object of the addition is to prevent this deposit, and the evidence shows that the addition would do much to prevent it, especially in front of the defendants’ dock, where it shoals the water so as to hinder the moorings of coal boats and barges at the end of their pier, where there is at present only three or four feet of water.
The defendants, as shown by the diagrams in- evidence, began to . build out into the river an addition to their dock, forty feet in length, the northerly line being an extension of the northerly line ' of the pier, the addition to be about fifteen feet narrower than the present pier. There is some evidence that tlie body of the proposed ‘ -dock is somewhat to the south of tlie place shown on the diagram, but the defendants would be concluded by their own maps from any other location if it • were needful to insert such a provision in the judgment.
The plaintiffs own, and' for about ten years have been running daily to their dock, a passenger and freight steamboat, and claim that in going up the river and in docking their steamboat it is sometimes necessary to lap the bow of their boat some five or.ten feet upon the outer or river end of the defendants’ pier, preparatory to warping the boat into its berth on the lower side of their own pier, and that the defendants’ ¡iroposed addition will, seriously interfere with, if not practically destroy, this beneficial use of their own pier, ■and prevent them from warping their boat into the slip, or from landing passengers and freight while moored at tlie end of their pier.
The boat is 140 feet in length, and the plaintiffs’ dock 60 feet in width, the' slip, between the two docks 32 feet, and the slip south of plaintiffs’ pier is 32 feet wide, with open water of 100 feet, and it is somewhat difficult to see why the boat -cannot he warped into its slip without lapping the defendants’ pier, as from the outer lower corner [477]*477of their dock which, is the turning point of the operation, there is over 90 feet of water space for the how before it reaches the lower line of the defendants’ pier, considerably more than one-half the entire length of the boat. If the plaintiffs with a boat 140 feet-in length have the right to prevent the defendants building out their pier, there is no reason why they may not use a larger boat which would cover the whole front end of the defendants’ pier and thus prevent them from occupying the end of their pier, even when they needed to have their own boats moored there for loading and unloading.
The average depth of water at the lower end of the defendants’’ pier is only six feet at low water, while the boat draws about seven and one-half feet light, and something more when loaded. It is. difficult to see how the boat can use this water without grounding her bow in front of the defendants’ dock, except at, or nearly at high tide, the rise and fall of which is three and a half or four feet.
The plaintiffs sometimes land their boat at the end of their pier and unload from a gangplank at the after gangway. Ho reason is shown why they may not unload from the forward gangway, but even when they use the after gangway, the gangplank is ten or twelve feet from the lower line of their pier, and there does not seem to be any necessity for lapping the defendants’ dock, as the lower line of that dock is seventy-eight feet distant from the gangway,, about four-sevenths of the length of the boat.
The learned trial judge at Special Term states in his opinion that “ it would be very difficult at all times, and impossible many times, to bring the plaintiffs’ boat to her dock without running her bow about fifty feet in front of the dock of the defendants.” Ho such claim is made in the plaintiffs’ papers, and as this would bring the stern of the boat above the lower line of the plaintiffs’ dock, we are not able to agree with that part of the opinion.
As the addition laid out. on the diagram leaves a water space of fifteen feet above the lower line of the defendants’ dock, and as the plaintiffs only claim that they lap the defendants’ dock about ten feet, it is difficult, to see how the new structure will interfere with their landing. Hor does it appear why they may not make their landing in their own slip in an oblique direction, or from the north, with the bow heading down the river as is sometimes done.
[478]*478The grant to the plaintiffs’ assignors of lands under water by the . Commissioners of the Land Office was issued in 1874, and was “for the purpose of promoting the commerce of our said State and for no other object or purpose,” and was conditioned upon the erection of a dock' within five years.' The dock appears to have been built in its present shape shortly after the issuing of the grant.
The original grant to the defendants or their grantors is not in evidence, but it appears .that their dock was built about 1876, and it may be assumed that they also had a grant. In 1893 the defendants obtained another grant “-for the beneficial enjoyment.” This grant extends about seventy-five feet beyond the end of the present docks.
There is a difference between these two classes of grants; that for purposes of commerce is limited upon the erection of a dock within the named period; that for the beneficial enjoyment contains no.' such provision arid is apparently perpetual and authorizes the construction of such dock out to the exterior line of the grant as is necessary to beneficial enjoyment.
When the plaintiffs’ dock was erected under their grant, it may be assumed that the grant of lands under water in front, of their upland' became perpetual, but I cannot see that the plaintiffs -acquired any exclusive right in the waters beyond a line running substantially at right angles to their own shore or to the exclusive navigation of any adjacent waters.
If any distinction is to be drawn between the grant to the ' "plaintiffs in 1873, and the grant to the defendants in 1893, it would •seem at least that the defendants’ grant was not inferior to that of 'the plaintiffs.
Both parties built their docks the same distance out into the river, -and thus acquired rights, but the defendants have now obtained an •additional grant under which they claim the right to build their proposed dock.
Knickerbocker Ice Oo. v. Shultz (116 N. Y. 382) was a case where •a grant had been given to the plaintiff’s assignor, who had erected a dock below high-water mark, and subsequently obtained a grant of the lands under water in front of his upland. Later the defendants -obtained a grant for beneficial enjoyment of lands under water in .front of their premises which lay to the south of the plaintiff’s dock.
[479]*479The plaintiff had been in the habit of cutting ice in a cove south of its dock, and conveying it through a canal in the ice, and over the lands under water covered by the grant to defendants, upon which the defendants commenced the construction of a dyke, wholly upon their own lands, the erection of which would 'prevent the plaintiffs towing ice through its canal, and the court held . that the plaintiff acquired no more than the lands under water in front of its upland, the lateral limits of which were perpendicular to the shore, and that as the easement claimed on defendants’ lands could not be acquired by presumption, even assuming that defendants’ dyke constituted a purpresture or a nuisance, the plaintiff could not maintain an action for its abatement.
The plaintiffs contend that the act of Congress, familiarly known as the River and Harbor Act (25 U. S. Stat. at Large, 425; amd., 26 U. S. Stat. at Large, 454, § 7) prohibits, the erection of any pier, wharf, breakwater or structure in any navigable waters of the United States, where no harbor lines are established, in such a manner as to obstruct or impair navigation, commerce or anchorage of said waters, without permission of the Secretary of War. It is evident that the statute only prohibits the erection of a dyke where it obstructs or impairs navigation, and this is one of the questions óf fact which is presented' in the present action. And wé do not find testimony sufficient to hold that the proposed structure will obstruct or impair navigation.
In support of his contention the plaintiffs’ counsel cites the case of Grand Trunk R. Co. v. Backus (46 Fed. Rep. 211), decided in the United States Circuit Court, where Judge Jaoicson, in an action brought by an adjoining ferry company, enjoined the extension of a wharf twenty-five feet into the Detroit river, to a point where the depth of water was twenty-six feet, and Where it may be assumed that the largest vessels were using the waters and where the channel was comparatively narrow. This, however, presents a very different case from the present one, where the waters are seldom traversed, and then only by vessels of small capacity, and where it is shown that the proposed structure will be no obstruction to general navigation. One rule might well apply to the former, and another rule to the latter case, when the rights of the public are considered. It is not shown here that there is any considerable use of [480]*480the waters; indeed, their use seems to "be confined chiefly to the vessels of the parties to this action.
Judge Jacksost also says that the building of - the proposed dock would prevent the crossing of navigable waters by the ferryboats in' entering and leaving their slip. This action differs so materially from the case at bar that it does not seem to assist our conclusion.
This court .at the present term, in the case of The City of Brooklyn v. Machay (13 App. Div. 105), following the case of Wetmore v. The Brooklyn Gas Light Co. (42 N. Y. 384) and Rumsey v. N. Y. & N. E. R. R. Co. (133 id. 79), held that the owner of the upland on a navigable stream had the right to construct a proper pier or wharf for his own use and that of the public, even though he had not obtained from the State a grant of the land under water. .We see no reason why the same rule does not equally pertain to the rights of the United States. It is not necessary for us to decide whether the Secretary of War could prevent the construction of the dock in question, but until action for that purpose is instituted no good reason is shown why the court should enjoin the construction of the dock in question, and thus prevent the defendants’ beneficial enjoyment of their property, ¡at the suit of, and for the benefit of the owners of
■ an adjacent piér, where the papers and evidence show that the interference with the landing of their boat is shadowy and unsubstantial, even if the exclusive use, as- claimed, found any authority in law.
The judgment is reversed, with costs to abide event.
All concurred.