Marshall v. Guion & Vultee

4 Denio 581

Opinion

By the Court, Jewett, J.

The material question in this case.is whether the portion of the pier No. 23, which was completed in 1842, belongs to the corporation of the city of New-York. It is not questioned but that the plaintiff owed wharfage to the owner of that part of the pier ; nor but th.xt the distress was regular and legal, provided Guión, as the lessee of the corporation, was entitled to such wharfage; nor is it denied but that Guion’s right was perfect if the corporation oxvned the pier.

By the charter of the city of New-York, granted by Governor Montgomery, in 1730, the corporation became entitled to all the land under xvater in the East river from Corlaer’s Hook to Whitehall, extending four hundred feet into the river beyond low water mark, together with certain rights and privileges, including wharfage, crainage and dockage. (Kent's City Charter, p. 86, § 38.) The corporation having prior to 1798 granted to individuals all the land under water which they acquired by their charter, in that year applied to the legislature for an act empowering them to construct streets and wharves in front of the xvater lots already granted. An act on this subject xvas at that time passed which was re-enacted in 1801. By this statute the mayor, aldermen and commonalty were authorized to regulate and alter the wharves and slips of the city in such manner as should be most commodious for shipping and navigation. (2 K. & R. 126, § 1.) If in layirfg out wharves or slips they should require the ground of any person, they were to treat with such person, and if they failed to agree, the damage and recompense of the oxvner were to be assessed by a jury, as particularly provided, upon xvhich the ground might be converted to the purposes required. (§ 2.) Authority was given to lay out “ according to a plan agreed upon for that purpose, regular streets and wharves of the width of seventy feet in front of those parts of the said city, which adjoin to the East river or Sound and to the North or Hudson’s river, and of such extent along these rivers respectively as they may think proper,” and to extend the same in length from time to time as the city should be built up along the rivers. (§ 3.) These streets or wharves were to be built at the expense “ of the proprietors of land adjoining or nearest and opposite to the said streets or wharves, in proportion to the breadth of their several lots,” and where the nearest lots did not adjoin the wharf, the owners were required to fill up the spaces betxveen the lots and the wharf, upon doing which and levelling the same they were respec lively entitled to the said intermediate spaces of ground in fee simple. (§ 4.) If the proprietors of the nearest lots should neglect to fill up and level these intermediate spaces, the corporation was directed to do it at their expense, which was to be collected by distress and sale, or by action of debt. (§ 5.) It was declared to be lawful for the corporation “ to direct piers to be sunk and completed at such distances and in such manner as they in their discretion shall think proper in front of the said streets or wharves,” to be connected by bridges with the streets or wharves, “at the expense of the proprietors of the lots lying opposite to the places where such piers shall be directed to be sunk.” If the proprietors should neglect to construct the piers directed to be built, the corporation was to do it at their own expense, “ and to receive to their own use wharf-age for all vessels that may at any time or times lie or be fastened to the said piers or bridges which they shall so make as aforesaid.” (§ 7.) The corporation were authorized to grant “ to the owners of lots fronting on any of the said streets of seventy feet, their heirs and assigns, a common interest in the piers to be sunk in front of such streets, in proportion to the breadth of their respective lots, under such restrictions and regulations and within such limits” as the corporation should deem just and proper. (§ 8.) It was under this act and the grants made by the corporation in 1804, that South-street was laid out and constructed in front of this part of the city. It was built wholly at the expense of the grantees, and they by the terms of the grant became entitled to the wharfage upon that street opposite the lots respectively granted to them.

By the act “ for the better government of the city of New-York,” &c. passed April 2, 1806, it was recited that from the great increase of the city and its trade, it had become necessary to provide additional wharves, piers, slips and basins for the accommodation of vessels; wherefore it was enacted that the corporation might cause piers to be sunk and basins to be made at their own expense, and might “ take to their own use the slippage and wharfage arising from the same, any law usage or custom to the contrary notwithstanding; provided al~ ways, that nothing herein contained shall be construed to deprive any persons who may have made piers by the directions of the said mayor, aldermen and commonalty, in pursuance of” the act of 1801, “ of any legal right which they may thereby have acquired, or to interfere with any private property or right or privilege held under grants of the said mayor, aldermen and commonalty, or otherwise.” (4 Web. 514, § 1.) The corporation is authorized to enlarge any of the slips in said city when they deem it for the public good, and on paying one-third of the expense of the necessary piers and bridges, they shall be entitled not only to the slippage upon the side next to the slip, but to one-half of the wharfage to arise at the outermost end of the piers. (§ 2.) Where persons who shall have been directed to construct piers and bridges according to the act of 1801, have neglected or shall neglect to do so, the corporation may grant the right to construct them, and the profits thereof to any other person in fee or otherwise, upon such terms as they shall think proper. (§ 3.) Where any of the proprietors of lots opposite to points where piers have been or may be directed to be sunk under the act of 1801, have refused or shall refuse to join with the other proprietors of lots in constructing the work, the corporation may be substituted for the delinquent proprietors, and be entitled to the proportion of wharfage which would have belonged to the delinquents if they had performed. (§ 4.) Notice that piers are to be constructed may be given by publishing it for six weeks in two newspapers; and any proprietor who shall not commence the work by the time fixed, or who shall not contribute his part of the expenses as they accrue, shall be deemed to have refused to comply with the directions. (§ 5.) The act “ to reduce several laws relating particularly to the city of New-York into one act,” passed April 9, 1813, (2 R. L. 342,) embodies the substance of the foregoing enactments, and under the provisions of §§ 224 and 230 of this revised act, which embrace the material parts of § 7 of the act of 1801, and § 2 of the act of 1806, the corporation professed to proceed in constructing the extension of the pier No. 23, in the year 1842. That pier was originally built in 1821, to the length of 255 feet; but it was not done pursuant to the first section of the act of 1806, or of section 228 of the revised act, which is the same identical provision re-enacted. Though the object of the city authorities may have been to form a public slip or basin opposite the Fulton market, the pier was not constructed at the public expense; nor could it have been placed in the spot where it was constructed under the authority of the provision referred to, as it would have violated private rights acquired and held under previous grants from the corporation. Nor was it constructed under the provisions of § 230 of the revised act, as that section only authorized the enlargement of slips already existing, by extending the piers which formed their sides. Conceding that the individual proprietors are concluded by the circumstances under which the pier was erected, and the lapse of time and subsequent user and acquiescence from questioning the location of the pier, or the right of the corporation to the wharf-age and slippage on the southwesterly side, and to the wharfage at the outer end of the pier, in accordance with the opinion of the vice chancellor in Verplanck v. The Mayor, &c. (2 Edwards, 220,) concerning which it is unnecessary to express an opinion; still this shows no authority for the claim now set up to the wharfage arising from the new part of the pier constructed in 1842. The powers of the corporation under the acts referred to, extend to four different subjects—wharves, piers, slips and basins. Under the charter and subsequent grants the corporation had no right to the land comprising South-street or the pier in question. By the act of 1801, they were made the agents of the state to vest a title in the riparian owners of the land between these grants and South-street, by filling it up and levelling it, and constructing South-street, with the incidents of wharfage on the extension of South-street; but the title did not vest in the corporation even if the owners had omitted to entitle themselves to it by complying with the conditions.'

In this view of the question the right of the corporation to the wharfage upon the extension built in 1842, depends upon their having acquired that right by taking the necessary legal steps under some of the statutes referred to. This they have failed to do. The notice was wrongly directed. It was “ to the proprietors of the easterly half of the pier.” The laws did not recognize any such class of persons. The direction should have been to the proprietors of lots lying opposite to the place where the pier was to be sunk. It was probably done under the idea that the persons who received the wharfage on that side were the owners of the easterly half of the pier. The same persons are proved to have likewise taken the wharfage at the outer end, and if such acts were evidence of title to the land, the same persons who owned the end also owned the easterly side. The difficulty is that the statute does not provide for the building of a second pier. When the owners of the lots fronting on the street built the first pier, the corporation was authorized to grant it to them. But if after the pier is constructed the ownership of the adjacent lots and the right to the pier become separated and vested in different individuals, which class is to build the addition to the pier 1 and to whom are the corporation to convey the common interest in the additional pier 1 The owners of the original pier would not necessarily or f robably be the owners of the lots fronting on the street. The corporation can hardly be authorized to call on those to build the pier to whom they can grant no interest in it; and if there is no person whom the corporation can direct to make the pier, there can be no failure or delinquency on the part of any one which can authorize the corporation to construct it themselves. The corporation is authorized to construct the pier and become entitled to the wharfage on the failure of the proprietors to do it. But they acquire no interest in the piers themselves, though they have a right to convey the interest which the state has in them to the owners of lots fronting on the street. Besides, it is very doubtful how far the legislature meant to allow the corporation to interfere with the vested rights of wharfage, incident to building the first pier. A construction which would allow such interference is not to be favored, particularly if no means are provided for indemnifying the persons who lose the wharfage. A right to wharfage could only accrue to the corporation by the default of the proprietors to build; aird be sides, the statute provides that the piers should be connected with the street. The notice is defective in another respect. The owners are required to commence the work by the time fixed and to contribute to the expenses as they shall accrue. (Act of 1806, § 5, supra.) This notice requires them to signify their intention to join with the corporation in building the extension and to contribute their respective proportions of the expense. This was an entirely different act, and if the notice corresponded with the resolution, they were both wrong. The pier contemplated by the resolution and notice was to be seventy feet in length. It was actually built ninety feet. Such a departure was wholly unauthorized and cannot be sustained upon any principle. If the right of the corporation to extend an existing pier and have the wharfage on the default of the proprietors after proper notice to build be conceded, still this extension must be regarded as unauthorized for the want of a proper resolution and notice under it, (Sharp v. Speir, 4 Hill, 76.) It follows that the corporation had no right to wharfage either on the northeasterly side or the end of the new part of the pier No. 23, and that the judgment of the common pleas must be reversed.

Judgment reversed.