[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
It will conduce to a clear understanding of this case, to exclude in the first instance all consideration of the act of April 17th, 1857, and to ascertain what would be the position and rights of the parties, irrespective of that statute.
If restrictions like those inserted in the act of 1821, upon the use and the power of sale of the land conveyed, had been contained in a conveyance granting land for the sole benefit and emolument of the grantee, they might not have been available at all to the grantor, or if at all, only as implied covenants on the part of the grantee. (Craig v. Wells, 1 Kern., 315.) But the grant here is not for the pecuniary benefit of the corporation, but is made in trust for the public at large. It is a mere transfer, pro tanto, to the city authorities of the
public trust vested in the people as the sovereign power, in respect to the lands in question, and a conveyance of the title for the purpose of enabling those authorities to execute the trust. The people although parting with their title, did not divest themselves entirely of their obligation to protect the public against any encroachment upon the navigable waters in question, other than such as the statute authorized. There is, therefore, no obstacle, notwithstanding the transfer of the title, in enforcing in the name of the people, the limitations contained in the act of 1821, so far as to prevent the erection of a nuisance in contravention of the provisions of that act.
The counsel for the defendant contends that nothing has been done which is inconsistent with the act of 1821; that as the city was authorized by that statute to fill up the locus in quo for a certain purpose, and as in the accomplishment of that purpose the city would have a right to do all that the defendant, acting under the authority of the city ever has done, no foundation was laid by the proof aside from the act of 1857, for any injunction upon the work.
With a view to this objection, it will be well to look particularly at the judgment, which consists of two parts. The first perpetually enjoins the defendant "from building, erecting or maintaining, any pier or structure in the waters of the harbor of New York, south of pier No. 1 North river, and north of Castle Garden." The second provides for the removal by the defendant of the work already done, within thirty days after notice of the judgment.
The objection referred to has no application to the first part of this judgment, which is purely prospective, and relates not to what the defendant had already done, but to what it appeared he intended thereafter to do. Injunctions are usually prospective in their operation, and are designed in general to prevent the doing of some unlawful act, which the defendant threatens, or is about to perform. The terms of the resolution under which the defendant in this case proceeded, are abundantly sufficient to warrant the court in assuming that he intended to erect a pier for his own private gain; or, at least,
for some use inconsistent with that prescribed by the act of 1821. It was entirely proper, therefore, so far as this objection is concerned, that he should be restrained from accomplishing his purpose.
With respect to the other portion of the judgment, the objection has more plausibility. The argument that it would be improper and useless to compel the city or any one acting under its authority to remove material from the bed of the river or harbor, merely on the ground that it had been placed there for a wrong purpose, when the city might the next day put it back again for a legitimate purpose, is not without apparent force. Still, we think this branch of the judgment may be supported even without reference to the statute of 1857, as the city would have no right to place or keep obstructions in the harbor, although they might be made to constitute a part of the work it was authorized to perform, unless it intended in good faith to go on and complete such work.
The act of 1821 proceeded upon the ground that the inconveniences arising from obstructions in the navigable waters of the harbor, would be more than counterbalanced by the advantages to be derived from the performance of the work it authorized. But unless this judgment can be sustained, the city might permit the obstructions produced by the crib to remain in perpetuity, without the compensating benefit contemplated by the act.
There is, however, another objection, which, considering the case irrespective of the act of 1857, it is more difficult to answer. The judge upon the trial assumed that if the pier was unauthorized, it was, per se, a nuisance, and rejected all proof that it was not so in fact, Was this correct?
The right of property in the soil or bed of a navigable river or arm of the sea, and the right to use the waters for the purposes of navigation, are entirely separate and distinct. The first of these rights is by the common law vested prima facie
in the sovereign power; that is, in England, in the king, here, in the people; but may be alienated by the king or people so as to become vested in an individual or corporation.
(Hale, De Jure Maris and De Portibus, 1 Harg. Law Tracts;Rogers v. Jones, 1 Wend., 237.) The second is a right common to the whole people, and it is vested in the public at large. A purpresture is an invasion of the right of property in the soil, while the same remains in the king or the people. A nuisance is an injury to the jus publicum, or common right of the public to navigate the waters. It will be seen, therefore, that there is a wide difference between the two, and that although they may coexist, yet either may exist alone without the other.
If the injury complained of be a purpresture, it may be abated and removed at the suit of the attorney-general in England, and of course of the people in this State, whether it is a nuisance or not. (Eden on Inj., § 9, p. 259; Attorney-General v.Richards, 2 Anst., 603.) Being an encroachment upon the soil of the sovereign, like trespass upon the soil of a private individual, it will support an action irrespective of any damage which may accrue. But where the action is to remove a nuisance, which is not a purpresture, a nuisance in fact must in all cases be shown to exist. (Hale, de Portibus Maris, chap. 7;Attorney-General v. Richards, supra.) In the present case the title to the land being vested in the city, there could be no purpresture, and as the defendant acted under the authority of the city, if the case depended upon the act of 1821 alone, without regard to that of 1857, the decision of the judge excluding evidence that the structure was not and would not be when completed, a nuisance, would have been clearly erroneous. It becomes necessary, therefore, to consider the effect of the latter act.
It is insisted that this act does not aid the plaintiff's case. First, because it does not locate and define any exterior pier line by its own provisions, or by reference to any existing map of record, but only according to maps thereafter to be filed by the harbor commissioners.
Free access — add to your briefcase to read the full text and ask questions with AI
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
It will conduce to a clear understanding of this case, to exclude in the first instance all consideration of the act of April 17th, 1857, and to ascertain what would be the position and rights of the parties, irrespective of that statute.
If restrictions like those inserted in the act of 1821, upon the use and the power of sale of the land conveyed, had been contained in a conveyance granting land for the sole benefit and emolument of the grantee, they might not have been available at all to the grantor, or if at all, only as implied covenants on the part of the grantee. (Craig v. Wells, 1 Kern., 315.) But the grant here is not for the pecuniary benefit of the corporation, but is made in trust for the public at large. It is a mere transfer, pro tanto, to the city authorities of the
public trust vested in the people as the sovereign power, in respect to the lands in question, and a conveyance of the title for the purpose of enabling those authorities to execute the trust. The people although parting with their title, did not divest themselves entirely of their obligation to protect the public against any encroachment upon the navigable waters in question, other than such as the statute authorized. There is, therefore, no obstacle, notwithstanding the transfer of the title, in enforcing in the name of the people, the limitations contained in the act of 1821, so far as to prevent the erection of a nuisance in contravention of the provisions of that act.
The counsel for the defendant contends that nothing has been done which is inconsistent with the act of 1821; that as the city was authorized by that statute to fill up the locus in quo for a certain purpose, and as in the accomplishment of that purpose the city would have a right to do all that the defendant, acting under the authority of the city ever has done, no foundation was laid by the proof aside from the act of 1857, for any injunction upon the work.
With a view to this objection, it will be well to look particularly at the judgment, which consists of two parts. The first perpetually enjoins the defendant "from building, erecting or maintaining, any pier or structure in the waters of the harbor of New York, south of pier No. 1 North river, and north of Castle Garden." The second provides for the removal by the defendant of the work already done, within thirty days after notice of the judgment.
The objection referred to has no application to the first part of this judgment, which is purely prospective, and relates not to what the defendant had already done, but to what it appeared he intended thereafter to do. Injunctions are usually prospective in their operation, and are designed in general to prevent the doing of some unlawful act, which the defendant threatens, or is about to perform. The terms of the resolution under which the defendant in this case proceeded, are abundantly sufficient to warrant the court in assuming that he intended to erect a pier for his own private gain; or, at least,
for some use inconsistent with that prescribed by the act of 1821. It was entirely proper, therefore, so far as this objection is concerned, that he should be restrained from accomplishing his purpose.
With respect to the other portion of the judgment, the objection has more plausibility. The argument that it would be improper and useless to compel the city or any one acting under its authority to remove material from the bed of the river or harbor, merely on the ground that it had been placed there for a wrong purpose, when the city might the next day put it back again for a legitimate purpose, is not without apparent force. Still, we think this branch of the judgment may be supported even without reference to the statute of 1857, as the city would have no right to place or keep obstructions in the harbor, although they might be made to constitute a part of the work it was authorized to perform, unless it intended in good faith to go on and complete such work.
The act of 1821 proceeded upon the ground that the inconveniences arising from obstructions in the navigable waters of the harbor, would be more than counterbalanced by the advantages to be derived from the performance of the work it authorized. But unless this judgment can be sustained, the city might permit the obstructions produced by the crib to remain in perpetuity, without the compensating benefit contemplated by the act.
There is, however, another objection, which, considering the case irrespective of the act of 1857, it is more difficult to answer. The judge upon the trial assumed that if the pier was unauthorized, it was, per se, a nuisance, and rejected all proof that it was not so in fact, Was this correct?
The right of property in the soil or bed of a navigable river or arm of the sea, and the right to use the waters for the purposes of navigation, are entirely separate and distinct. The first of these rights is by the common law vested prima facie
in the sovereign power; that is, in England, in the king, here, in the people; but may be alienated by the king or people so as to become vested in an individual or corporation.
(Hale, De Jure Maris and De Portibus, 1 Harg. Law Tracts;Rogers v. Jones, 1 Wend., 237.) The second is a right common to the whole people, and it is vested in the public at large. A purpresture is an invasion of the right of property in the soil, while the same remains in the king or the people. A nuisance is an injury to the jus publicum, or common right of the public to navigate the waters. It will be seen, therefore, that there is a wide difference between the two, and that although they may coexist, yet either may exist alone without the other.
If the injury complained of be a purpresture, it may be abated and removed at the suit of the attorney-general in England, and of course of the people in this State, whether it is a nuisance or not. (Eden on Inj., § 9, p. 259; Attorney-General v.Richards, 2 Anst., 603.) Being an encroachment upon the soil of the sovereign, like trespass upon the soil of a private individual, it will support an action irrespective of any damage which may accrue. But where the action is to remove a nuisance, which is not a purpresture, a nuisance in fact must in all cases be shown to exist. (Hale, de Portibus Maris, chap. 7;Attorney-General v. Richards, supra.) In the present case the title to the land being vested in the city, there could be no purpresture, and as the defendant acted under the authority of the city, if the case depended upon the act of 1821 alone, without regard to that of 1857, the decision of the judge excluding evidence that the structure was not and would not be when completed, a nuisance, would have been clearly erroneous. It becomes necessary, therefore, to consider the effect of the latter act.
It is insisted that this act does not aid the plaintiff's case. First, because it does not locate and define any exterior pier line by its own provisions, or by reference to any existing map of record, but only according to maps thereafter to be filed by the harbor commissioners. This is said to leave it in the power of the commissioners to define the limits within which the law should operate, which it is insisted is an unauthorized delegation of legislative power. It will appear,
however, by reference to the act, that with certain exceptions not affecting this case, the pier line is established according to certain maps made and presented to the legislature long before and which were produced upon the trial from the office of the Secretary of State. But were it otherwise, there is nothing to prevent the passing of a legislative act authorizing the harbor commissioners to locate such a line. Much greater delegations of power are frequently made to municipal and other public bodies.
It is further objected that the law of 1857, in so far as it is in derogation of the rights granted to the city by the act of 1821, is inoperative and void. This objection must rest solely upon that provision of the National Constitution, which prohibits States from making any law impairing the obligation of contracts. The legislature has an undoubted right to repeal or modify any previous statute which does not partake of the nature of a contract. The law of 1821 is not a contract. No pecuniary interest is granted by it to the city. It was passed exclusively for public purposes, and simply substitutes the authorities of the city for the legislature in the accomplishment of certain public objects. It was subject, therefore, at any time and to any extent, to alteration or repeal. Although the act of 1857 does not in terms restore the title to the land outside the pier line and within the six hundred feet to the people of the State, yet such, no doubt, was its effect. That title having been transferred to the city for a specific public purpose, and that purpose having been abandoned and its accomplishment rendered impossible by the act of 1857, the latter act must operate protanto as a repeal of that of 1821, and the title would of course revert to the people. It follows that the whole structure outside the pier line, it having been commenced after the passage of the act of 1857, was a purpresture and liable to be removed irrespective of the question whether it was or was not a nuisance.
It is no answer to the action, that there is another remedy under the act of 1860, imposing certain duties upon the commissioners of pilots. A statutory remedy never takes away a
previous remedy at common law, unless such an intention is declared, but it is always held to be cumulative merely.
The only remaining objection is to the form of the judgment, which it is said should not have directed the defendant himself to remove the crib, but should have left this to be done by the proper officer. This objection if well taken, would not warrant an appeal to this court, but the error should have been corrected in the court below on motion. But the judgment, although not in the usual and most approved form, is, we think, not objectionable. In the case of Ryder v. Bentham (1 Ves., Sen., 543), the Lord Chancellor appears to have made an order that the defendant himself pull down the scaffolding, which he had erected to the injury of his neighbor's rights, and we doubt not other precedents might be found for such a direction. Our conclusion, therefore, is, that the judgment should be affirmed.