271 U.S. 364
APPLEBY et al.
CITY OF NEW YORK et al.
Reargued March 1, 2, 1926.
Decided June 1, 1926.
[271 U.S. 364, 365] This is a writ of error to review the judgment of the Supreme Court of New York as affirmed by the Court of Appeals. Appleby v. City of New York, 199 App. Div. 539, 192 N. Y. S. 211; Id., 235 N. Y. 351, 139 N. E. 474. The plaintiffs are executors of Charles E. Appleby, and hold deeds in fee simple from the city of New York, made in 1853 and 1852, one to their testator Appleby, and one to Latou, who later con- [271 U.S. 364, 366] veyed to Appleby. The land conveyed consists of two water lots in the city of New York on the east side of North River. This suit was brought in 1914 to restrain the defendant, the city of New York, and its codefendants, lessees of the city's piers, from dredging the land under water conveyed by the deeds, and from using the water over the lots of the plaintiffs as slips and mooring places for vessels alongside those piers.
The Appellate Division and the Court of Appeals denied relief. This is a writ of error under section 237 of the Judicial Code (Comp. St. 1214), sued out on the ground that by its judgment, the Supreme Court of New York has upheld and enforced statutes of the state enacted in 1857 and 1871 in such a way as to impair the obligation of the plaintiffs' deeds, in violation of section 10, article 1, of the federal Constitution.
The city of New York was established before the Revolution by a charter of Governor Dongan in 1686, and by a subsequent charter of Governor Montgomery of 1730, under both of which it acquired title to the tideway-i. e., the strip between high and low water-surrounding the island of Manhattan. These grants were confirmed by the Constitution of 1777 of the state of New York. By the act of 1807 (Laws 1807, p. 125, c. 115) the state granted to the city a strip of land under water along the westerly side of the Island, which extended from low-water mark westerly into the Hudson river, a distance of 400 feet.
In 1837, the Legislature passed a law (Laws 1837, c. 182), making Thirteenth avenue as laid out by the city surveyor the permanent exterior street along the easterly shore of the North or Hudson river in the district where these lots are. It extended the streets already ready laid out to Thirteenth avenue, and further provided that it should be construed to grant to the city forever the said lands under water easterly of Thirteenth avenue. [271 U.S. 364, 367] In pursuance of this law, ordinances were passed by the sinking fund trustees of New York providing that the lands under water belonging to the city under its several charters might be sold and conveyed by such city to parties desiring to purchase the same, giving priority to the owners of the adjacent uplands. The ordinances were recognized and approved by the state Legislature in chapter 225 of the Laws of 1845, and the city then made the deeds here to be considered.
The grant to Appleby was made on August 1, 1853, for the consideration of $6,367.37; that to Latou on December 24, 1852, for $4,937. 50. The one covered land under water between Thirty-Ninth and Fortieth streets and high-water mark and Thirteenth avenue; the other land between Fortieth and Forty-First streets and high-water mark and Thirteenth avenue. The wording and covenants of the deeds were alike, mutatis mutandis. It will be enough to describe the Appleby deed. That granted:
The pink map of lot referred to in the deed is on the following page.
Appleby in the deed covenanted with the city that, within three months after the city required it, he would built four bulkheads and wharves, and fill in and pave such parts of Twelfth and Thirteenth avenues and Thirty-Ninth and Fortieth streets as lay within the premises described, and keep them in repair, with the provision that in default the city might make them at the cost of Appleby, or sell and dispose of the premises, or any part, at public auction to supply the deficiency, and grant the land and the wharfage to other persons. Appleby further convenanted to pay all taxes on the lot, and not to build the wharves, bulkheads, avenues, or streets until permission was given by the city.
The city covenanted that Appleby and his heirs and assigns should receive:
[271 U.S. 364, 368] -Continued
on the westerly side of the hereby granted premises fronting on the Hudson river excepting therefrom wharfage from the westerly end of the bulkhead in front of the entire width of the northerly half part of Thirty-Ninth street and the southerly half part of Fortieth street, which were reserved to the city.'
At the time of these deeds, there was no filling between the high- water mark and Twelfth avenue, but since that time, and before 1871, the lots were filled by Appleby from high-water mark to within 4 feet of the easterly side of Twelfth avenue, a distance of approximately 500 feet.
In 1855 (Laws 1855, c. 121), for the avowed reason that grants had been made and piers built which obstructed the river navigation, provision was made for a harbor commission to prepare plans for harbor improvement and as a result chapter 763, Laws 1857, was passed to establish for the harbor bulkhead and pier lines. In its second section it 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 the 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.'
In the same year, by virtue of the act, the harbor commission established a bulkhead line beyond which there could be no solid filling at 100 feet west of Twelfth avenue.
The necessary effect of this legislation and action, if made effective, was to abolish Thirteenth avenue as a ripa or exterior line on the river, and to prevent the filling of plaintiffs' lots outshore from the bulkhead line, and the making of docks on the lots, and the enjoyment of wharfage at the ends thereof within 100 feet of the city's piers. [271 U.S. 364, 370] By Laws 1871, c. 574, 6, which amended section 99 of the Act of April 5, 1870 (Laws 1870, c. 137), relating to the government of the city of New York, it was provided that the department of docks should be established, that it should determine upon such plans as they deemed wise for the whole or any part of the water front, and submit them to the commissioners of the sinking fund, who might adopt or reject any such plan. After the plan was adopted, no wharf, pier, bulkhead, basin, dock, slip or any wharf, structure, or superstructure should thereafter be laid out or constructed within the territory or district embraced in the specified upon such plan except in accordance with the plan. The decept partment was authorized in the act of 1871 to acquire, in the name and for the benefit of the city, any and all wharf property in the city to which the city had no right or title, and any rights and easements, and any rights, terms, easements, and privileges, pertaining to any wharf property in the city, and not owned by the city, by purchase or by condemnation. By the act of 1871, the bulkhead line for solid filling was fixed at 150 feet west of Twelfth avenue, instead of 100 feet, as previously fixed.
In 1890, the Secretary of War fixed the same bulkhead line as that fixed by dock commissioner under the act of 1871. Thereupon, in 1894, a condemnation proceeding was begun by the city against Appleby to appropriate both lots. It was delayed for 20 years, presumably for a lack of funds. In 1914 it was discontinued by the city. This action was commenced shortly thereafter.
During the pendency of the condemnation proceeding, the city constructed concrete and steel piers against plaintiffs' objection within the lines of West Thirty-Ninth street, of Fortieth street, and Forty-First street, beginning at or near Twelfth avenue and extending westerly to and beyond Thirteenth avenue. It placed thereon iron or steel sheds and leased these to tenants excluding the public from the piers. The piers have numerous doors and windows which open on [271 U.S. 364, 371] to the water over the Appleby lots, so that boats are constantly moored and fastened alongside of the piers and in the adjoining slips upon plaintiffs' premises and discharge their cargoes and freight into the sheds. The city also constructed an overhanging dumping board or platform extending northerly from the Thirty-Ninth street pier for the use of its tenants over the same water. The city has from time to time dredged plaintiffs' premises between its piers without their consent to a depth of about 20 feet, and threatens to continue to do so. West of the bulkhead line the depth of water varied from 4 feet in 1884 to 20 feet now. East of the line the bottom was an average depth of 3 feet, and was dredged to 16 or 20 feet as far east as 50 feet from the west side of Twelfth avenue, or 100 feet inside the bulkhead line. The record contains reports in 10 years, between 1895 and 1905, showing dredging of about 150,000 cubic yards in the two slips or basins. From its piers, made more valuable by the use of these slips and mooring places, the city receives substantial rentals and income from its lessees and other occupants of the piers.
No request was ever made by the city that Appleby should fill the streets, which he covenanted to fill on the city's call, and not to fill until that. After the act of 1871, the city built the piers, and the streets and avenues specified in the deeds, so far as they have been built. Thirteenth avenue, being out shore from the bulkhead line fixed in 1857 and 1871, was never filled.
In January, 1917, the plaintiffs were required to pay as back taxes upon these lots the sum of $74,426.01.
The prayer of the petition is that the city and its tenants and the other defendants be enjoined from using plaintiffs' lots as a slip or permanent mooring place and from dredging them.
The Special Term of the Supreme Court held that the deeds here in question conveyed a fee-simple title to the [271 U.S. 364, 372] plaintiffs, carrying both the jus publicum and the jus privatum, and that their rights could not be affected by the act of 1857 and the act of 1871, or the orders of the dock commissioners under that act, but that the establishment of the bulkhead line by the Secretary of War in 1890 made the waters of the Hudson river westerly of that line open and in use for purposes of commerce and navigation, and that no action to restrain or prevent the use of that water for loading or unloading at the city piers would lie, but that the city was without right to dredge any soil or part of the granted premises east of the bulkhead line, and should be enjoined from doing so. The Special Term refused damages for the dredging which had been done for failure to adduce proper evidence as to what the damages were and allowed only a nominal recovery.
On appeal, the Appellate Division also held that the deeds carried to the plaintiffs the jus publicum and the jus privatum from the city and the state, and that the plaintiffs' rights under the deeds could not be affected by the acts of 1857 and 1871, but closed its findings and conclusions as follows:
The Court of Appeals, in its opinion (235 N. Y. 351, 139 N. E. 474), affirming the decree of the Appellate Division, after referring to the laws of 1857 and 1871 as the basis of the contention of the city that the plaintiffs were not entitled to relief, said:
The court said further that, if the plaintiffs' lots easterly of the bulkhead line had been actually filled in, they would no longer be lands under water, and would be completely subject to the plaintiffs' control, but that, so long as they remained unfilled and under water, they were subject to the sovereign power of the state and city to regulate the use of the water over them for purposes of navigation, and accordingly held that in respect to them the city had invaded no right of the plaintiffs. The opinion of the Court of Appeals indicates that previous decisions of the court contain dicta in respect to the jus publicum and jus privatum that cannot be sustained. [271 U.S. 364, 374] Messrs. Charles E. Hughes, of New York City, Charles Henry Butler, of Washington, D. C., and Banton Moore, of New York City, for plaintiffs in error.
[271 U.S. 364, 376] Messrs. Charles J. Nehrbas, George P. Nicholson, and William C. Cannon, all of New York City, for defendants in error.
Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court.
The plaintiffs in their writ of error charge that the judgment of the Supreme Court of New York, as affirmed by the Court of Appeals, has interpreted and enforced the acts of 1857 and 1871 in such a way as to impair the obligation of the contract in their deeds.
The questions we have here to determine are, first, was there a contract; second, what was its proper construction and effect; and, third, was its obligation impaired by subsequent legislation as enforced by the state court? These questions we must answer independently of the conclusion of that court. Of course we should give all proper weight [271 U.S. 364, 380] to its judgment, but we cannot perform our duty to enforce the guaranty of the federal Constitution as to the inviolability of contracts by state legislative action unless we give the questions independent consideration. It makes no difference what the answer to them involves, whether it turns on issues of general or purely local law, we cannot surrender the duty to exercise our own judgment. In the case before us, the construction and effect of the contract involved in the deeds and covenants depend chiefly upon the extent of the power of the state and city to part with property under navigable waters to private persons, free from subsequent regulatory control of the water over the land and the land itself. That is a state question, and we must determine it from the law of the state as it was when the deeds were executed to be derived from statutes then in force and from the decisions of the state court then and since made; but we must give our own judgment derived from such sources, and not accept the present conclusion of the state court without inquiry.
Ordinarily this court must receive from the court of last resort of a state its statement of state law as final and conclusive, but the rule is different in a case like this. Jefferson Bank v. Skelly, 1 Black, 436, 443; University v. People, 99 U.S. 309 , 321; New Orleans Water Company v. Louisiana Sugar Company, 125 U.S. 18, 38 , 8 S. Ct. 741; Huntington v. Attrill, 146 U.S. 657, 684 , 13 S. Ct. 224; Mobile & Ohio Railroad v. Tennessee, 153 U.S. 486 , 14 S. Ct. 968; Louisiana Railway & Navigation Co. v. Behrman, 235 U.S. 164, 170 , 171 S., 35 S. Ct. 62; Long Sault Co. v. Call, 242 U.S. 272, 277 , 37 S. Ct. 79; Columbia Railway v. South Carolina, 261 U.S. 236, 245 , 43 S. Ct. 306.
We must also consider here what effect the action of the United States in its dominant control over tidal waters for the preservation and promotion of navigation has had in affecting or destroying the rights of the plaintiffs [271 U.S. 364, 381] claimed to have been impaired by the acts of 1857 and 1871, and to consider whether such action has rendered the state legislative impairment innocuous and deprived plaintiffs of the right to complain of it.
Upon the American Revolution, all the proprietary rights of the crown and Parliament in and all their dominion over lands under tidewater vested in the several states, subject to the powers surrendered to the national government by the Constitution of the United States. Shively v. Bowlby, 152 U.S. 1 , 14 S. Ct. 548. The rights of the plaintiffs in error under the two deeds here in question with their covernants are to be determined then by the laws of New York as it was at the time of their execution and delivery. They were not deeds of gift; they were deeds for valuable consideration paid in money at the time, and a large amount of taxes on the lots have been collected from the plaintiffs by reason of their ownership. The principle applicable in the construction of grants of lands under navigable waters in the state of New York was announced by the Supreme Court of Errors in 1829 in Lansing v. Smith, 4 Wend. (N. Y.) 9, 21 Am. Dec. 89. In that case, which has always been regarded as a leading one, the commissioners of the Land Office in New York granted without valuable consideration to an upland owner land under water on which he erected a whart after filling in the same. Thereafter the Legislature authorized the erection of a mole or pier in the river for the purpose of constructing a basin for the safety and protection of canal boats, and this mole or pier entirely encompassed the wharf on the side of the water so as to leave no communication between it and the river except through a sloop lock at one extremity of the basin. It was held that the loss sustained by the owner was damnum absque injuria, that the grant only conveyed the land described in it by metes and bounds, and, being in derogation of the rights of the public nothing would be implied. [271 U.S. 364, 382] Chancellor Walworth, speaking for the Court of Errors of the state, said:
In the case of People v. New York & Staten Island Ferry Company, 68 N. Y. 71, the Court of Appeals, speaking of the common law, said (at page 77):
In that case the question involved the effect of a legislative grant of lands under water, so far as appears without valuable consideration, by the land commission of the state in 1818 to one John Gore on the eastern shore of Staten Island, including the premises thereafter acquired by the New York & Staten Island Ferry Company. The grant extended from low-water mark into the bay a distance of 500 feet, to have and to hold to Gore, his heirs and assigns, as a good and indefeasible estate of inheritance forever, under a statute authorizing the grant of such lands as the commissioners should 'deem necessary to promote the commerce of the state.' It was held that, as there was nothing to show that it was intended to restrict the state in the preservation of the navigation of the river in that 500 feet the grant to Gore might be and was restricted by the subsequent statute of 1857 of the state of New York, providing that it should not be lawful to fill in the land granted with earth or other solid material beyond the bulkhead line established under that law, or by piers that should exceed 70 feet in width, with intervening water spaces of at least 100 feet between them. It was therefore decided that the erection of a clubhouse on the land granted was a purpresture.
It is apparent from these decisions that, under the law of New York when these cases were decided, whenever [271 U.S. 364, 384] the Legislature deemed it to be in the public interest to grant a deed in fee simple to land under tidal waters and exclude itself from its exercise as sovereign of the jus publicum (that is, the power to preserve and regulate navigation), it might do so, but that the conclusion that it had thus excluded the jus publicum could only be reached upon clear evidence of its intention and of the public interest in promotion of which it acted.
What is thus declared as the law of New York in these two cases, where it was found that the jus publicum had not been conveyed, is shown in a number of cases in the Court of Appeals, in which the state and its agency, the city, did part with the jus publicum to private owners of land under tidal water, and of wharfage rights thereon, upon adequate compensation and in pursuance of a plan of harbor improvement for the public interest.
In the cases of Duryea v. Mayor, 62 N. Y. 592, and Duryee v. Mayor, 96 N. Y. 477, a deed of land under tidal water by the city of New York, with the authority of the state, conferred upon the grantees a fee-simple title with all the privileges of an absolute owner, except as restricted by the covenants and reservations contained in it. The covenants related to the filling of the streets running through the lots, which were excepted from the grant. The grantees had partially filled the water lots, and while this was being done the city with a sewer had flowed the land with the contents of the sewer. The sewer had been placed under a revocable license of the owner, but when the license was withdrawn the city insisted on continuing to use the lots for sewer discharge, and this it was held the city could not do.
In the later case, in 1884, the Court of Appeals, speaking of the deed, said at page 497:
In Towle v. Remsen, 70 N. Y. 303, 308, the Court of Appeals, in dealing with the effect of a deed of New York City of land under tidal waters, said:
A deed of this class came before the Court of Appeals in Langdon v. Mayor, 93 N. Y. 129. The state commissioners of the land office, under a law of 1807, granted to the city a strip of land under water in the North River, the westerly line of which was in the river 400 feet west of the low-water mark. The city laid out an extension of West street along this strip, parallel with the river; the [271 U.S. 364, 386] westerly line of the street being about 200 feet out in the river west of low-water mark. In 1810 the city granted to Astor, the owner of the adjoining uplands, certain lands under water, including a portion of the strip, the westerly bounds of the grant being 'the permanent line of West street, saving and reserving so much of the same as will be necessary to make West street in accordance with the map or plan.' In consideration of the grant the grantee covenanted to pay certain perpetual rents, to make such wharves as should be necessary to make the portion of West street, within the bounds of the grant, of the width specified, and forever thereafter to maintain and keep them in repair. The city covenated that the grantee should at all times thereafter have the wharfage, from the wharf or wharves to be erected on the west end of the premises granted. Astor constructed West street across the land granted, in accordance with his covenant, and maintained the wharf on the westerly line of said street. Without making compensation to the plaintiff, who succeeded to his title, the city erected a bulkhead outshore from such westerly line and filled up the space between it and the old bulkhead and destroyed the use of the wharf. It was contended that the city and state could not part with the power to preserve and regulate navigation in the water between the wharf and the 200 feet beyond owned by the city. The Court of Appeals held that the covenant as to the wharf which the city made to Astor in the deed was a grant of an incorporeal hereditament of wharfage, which the city or state could not impair; that the city acquired by its grant from the state the right to fill up the land granted, to build wharves thereon, and to receive wharfage; that whatever property rights it thus acquired it could convey to individuals; that by its grant to Astor the city conveyed, not only the land, excepting the part covered by West street, but also the right of wharfage; that an [271 U.S. 364, 387] easement (i. e., a perpetual right of free access to the wharf across West street over the land of the city) therein passed by necessary implication; that the city had the right to grant such easement; that the Legislature could not by the act in question authorize a destruction or impairment of this easement without compensation to the owner; and that therefore the action for damages was maintainable.
In the course of his opinion for the court, Judge Earl, speaking of the power of the city conferred upon it by the state, said (at page 144):
Speaking of the wharfage granted the judge said (at page 152):
The necessary effect of the Langdon Case, which has always been a leading authority in the state of New York, is that a grant upon a valuable consideration of the easement of wharfage related to land under water conveyed by the city by authority of the state, for the purpose of promoting commerce and the harbor of the city, taken away from the city and state the power to regulate navigation in any way which would interfere with or obstruct the grant, and that, if the city desired in the interest of navigation to obstruct such easement, it must acquire it by condemnation. If it may do this, it follows necessarily that it may by an absolute deed of land under [271 U.S. 364, 389] water, with the right of the grantee to fill it, part with its own power to regulate the navigation of water over this land which would interfere with its ownership and enjoyment by the grantee.
The Langdon Case was approved and followed in the case of Williams v. City of New York, 105 N. U. 419, 11 N. Ed. 829. In that case, the city under New York laws of 1813 and 1857 was held to have received authority from the state to fill in the east side of the Hudson River from an existing bulkhead to Thirteenth avenue with a new bulkhead there. The city made a grant to a private person of the land under water some 80 feet, with a requirement that he fill it in and build the new bulkhead with wharfage on the outer bulkhead. It was held that he took a fee, that he had an easement for the approach of vessels in its front, and that the property thus granted him could not be taken by the city for the public use without compensation. The court said in that case:
The same principle was announced in Mayor v. Law, 125 N. Y. 380, 26 N. E. 471.
In People v. Steeplechase Park Co., 218 N. Y. 459, 113 N. E. 521, Ann. Cas. 1918B, 1099, it was held that where the state, through its land commissioners, unqualifiedly granted to defendants lands in navigable waters between high and low water marks, the exclusive use and right of possession vested in the grantee. Hogan, Cardozo, and Seabury, Judges, dissented. The ruling went to the extent of deciding that fences, barriers, platforms, pavilions, and other structures of a private amusement park constructed by the grantee on lands under navigable water between high and low water mark, although an interference with the public use of and access to such lands, could not be enjoined where the grant of such lands was unqualified.
In that case at pages 479, 480 (113 N. E. 526), the court said:
The Duryea and the Langdon Cases rest on the delegation by the state to the city of the state's sovereign right to control navigation or the jus publicum in the land to be disposed of by the city to private owners in pursuit of the promotion of filling land under water to a ripa or exterior line, and of the construction of docks to make a harbor. The rights of such private owners come, not from riparian rights, or gratuitous statutory grants. They come from a deed absolute of the lots conveyed for a money consideration. The Steeplechase Park Case was a close case, as shown by the dissents, and was not nearly so strong a one for the application of the principle above stated as the case at bar, or the Duryea and Langdon Cases.
If we are right in our conclusion as to the effect of these deeds under the law of New York at the time of their execution, then there can be no doubt that the laws of 1857 and 1871 as enforced in this case impair the contract made by the city with the grantees of these deeds.
Cases cited as contrary to the New York City water lot decisions just considered must be examined, to see whether they involve grants of lots under tidewater by deed absolute in fee simple from the city or state, in consideration of money paid and in promotion of harbor plans or other public purposes.
Knickerbocker Ice Co. v. Forty-Second, etc., R. Co., 176 N. Y. 408, 68 N. E. 864, is relied on to show a conclusion adverse to the infer- [271 U.S. 364, 392] ences we have drawn as to the New York law. There the Court of Appeals sustained an order denying an injunction to restrain the city from effecting an extension of Forty-Third street into the Hudson river, sought by one who by deed of the city was given the right to wharfage at the end of Forty-Third street. In the same deed land under water on each side of the street was conveyed to the grantee in fee simple. The court held that the street was held in trust by the city for the public use, and that the grant of wharfage at the end of the street did not carry the fee in the street, but only an easement of wharfage at the end of the street, as the city might extend it into the river, and that, by virtue of covenant in the deed, the grantee, if he would enjoy the wharfage, must erect a new wharf or pier at the new end of the extended street. The grant was not of the fee, but only of an ambulatory easement of wharfage on any extension of the street. But the city was nevertheless thereafter required to condemn this grant of the easement. American Ice Co. v. City of New York, 193 N. Y. 673, 87 N. E. 765, and 217 N. Y. 402, 112 N. E. 170.
The case of Sage v. Mayor, 154 N. Y. 61, 79, 47 N. E. 1096, 38 L. R. A. 606, 61 Am. St. Rep. 592, does not conflict in any way with the Langdon and other cases. That only concerned the right of a riparian owner in the tideway which the city owned and deeded to another. It was held that the riparian owner had no more right to complain of the city's disposition of the tideway for the public interest by deed than had the owner of a United States Patent reaching to high-water mark to complain of the state's disposition of the tideway in Oregon in Shively v. Bowlby, supra.
The cases of Brookhaven v. Smith, 188 N. Y. 74, 80 N. E. 665, 9 L. R. A. (N. S.) 326, 11 Ann. Cas. 1, and Barnes v. Midiand R. R. Terminal Co., 193 N. Y. 378, 85 N. E. 1093, 127 Am. St. Rep. 962, concern conflicting rights of riparian owners and of persons with limited grants to put out a wharf without any feesimple title, and seem to us to have no bearing upon the question here. [271 U.S. 364, 393] In Lewis Blue Point Co. v. Briggs, 198 N. Y. 287, 91 N. E. 846, 34 L. R. A. (N. S.) 1084, 19 Ann. Cas. 694, grantees under deeds made before 1700 conveying the excusive right of fishing leased for 10 years the right to plant and cultivate oysters in the navigable waters of the Great South Bay, Long Island, the lessees were held subject to an act of Congress authorizing and directing the dredging of a channel 2,000 feet long and 200 feet wide through their oyster beds without claim for compensation. It was held that they had derived no more right in the fishery than the king had in his private ownership, and he could not convey the right to restrict navigation which he held in trust for the public. The colonial grant, therefore, which was not like a grant from the state, did not exclude the sovereign right to provide for navigation. Moreover, it was a federal right which the owners were opposing, and of course they had to yield. Tempel v. United States, 248 U.S. 121 , 39 S. Ct. 56; Lewis Blue Point Oyster Co. v. Briggs, 229 U.S. 82 , 33 S. Ct. 679, Ann. Cas. 1915A, 232.
It is urged, against our view of what these deeds conveyed of the sovereign power of the state and the ownership of the city at the time of their execution, that it is opposed to the judgment of this Court in Illinois Central R. Co. v. Illinois, 146 U.S. 387 , 13 S. Ct. 110, in which the validity of a grant by the Illinois Legislature to the Illinois Central Railroad Company of more than 1,000 acres in the harbor of Chicago in Lake Michigan was under consideration. It was more than three times the area of the outer harbor, and not only included all that harbor, but embraced the adjoining submerged lands which would in all probability be thereafter included in the harbor. It was held that it was not conceivable that a Legislature could divest the state of this absolutely in the interest of a private corporation, that it was a gross perversion of the trust over the property under which it was held, an abdication of sovereign governmental power, and that a grant of such right was invalid. The limitations on the [271 U.S. 364, 394] doctrine were stated by Mr. Justice Field, who delivered the opinion, as follows, at page 452 (13 S. Ct. 118):
That case arose in the Circuit Court of the United States, and the conclusion reached was necessarily a statement of Illinois law, but the general principle and the exception have been recognized the country over and have been approved in several cases in the state of New York.
In Coxe v. State, 144 N. Y. 396, 39 N. E. 400, a company was created to reclaim and drain all or any portion of the wet or overflowed lands and tidewater marshes on or adjacent to Staten Island and Long Island, except such portions of the same as were included within the corporate limits of any city, upon the deposit of $25,000 and the payment to the state of a sum to be fixed by a commission after doing the work. This was a suit to recover a $25,000 deposit because the Attorney General had decided the law to be unconstitutional. The court followed the Illinois Central Railroad Case, and held the law invalid, but said:
The opinion says:
-citing Lansing v. Smith, supra; People v. New York & Staten Island Ferry Company, supra; and Langdon v. Mayor, supra; and added:
... The contemplated use, however, must be reasonable and one which can fairly be said to be for the public benefit or not injurious to the public.'
There is an interesting discussion of the same exception by Chief Justice Bartlett in People v. Steeplechase Park, supra, at page 482 (113 N. E. 521), in which he cites United States v. Mission Rock Co., 189 U.S. 391, 406 , 23 S. Ct. 606, and emphasizes the distinction between the Illinois Central, the Coxe, and Long Sault Cases and grants like those we are considering. It is clear that the ruling in those cases has no application here.
But it is said, and the court below held, that the fee simple granted by the deeds in this case did not exclude the right of the city to regulate and preserve navigation over the waters covering the land conveyed until they were filled, and that this distinguishes the Duryea, Langdon, and other cases, in which the filling had taken place, from the present one.
The suggestion that rights of ownership in lands under water, conveyed by the city by such a deed in fee simple, [271 U.S. 364, 397] are restricted, and the city's control of navigation of the water over them remains complete until they are filled, cannot be accepted without qualification in respect to grants which are intended to part both with the jus publicum and jus privatum, as we have found these deeds to do. The suggestion does not find support in the case of First Construction Co. of Brooklyn v. State, 221 N. Y. 295, 116 N. E. 1020, cited to sustain it. In that case, Beard was an upland owner whose land bordered on Gowanus Bay. The Legislature in three acts granted to a private person the right to build wharves and fill in lands in a salt meadow marsh and mud flats partially submerged at high tides. The court (Hiscock, C. J.), in stating the case, said:
It was held that no title could pass, because it was a gratuity, and no grant could be made under the Constitution without a two-thirds vote of the Legislature, which was not here, and that it was only a privilege or franchise, which could not ripen into a title until the land was filled. It does not bear on the case here, except in the necessary inference, from the treatment of the matter in the opinion, that, if title had passed, filling was not necessary to vest full fee simple in the grantee.
Of course we do not intend to say that under such deeds as these, as long as water connected with the river remains over the land conveyed and to be filled, navigation may not go on and boats may not ply over it, and that incident to such use occasional mooring may not take place. But it is a very different thing to say that [271 U.S. 364, 398] the city, which has parted with the jus publicum and jus privatum over such water lots, remains in unrestricted control of navigation, with the right to dredge them, or appropriate the water over them as a slip or regular mooring place for its adjoining piers, in the doing of a great business, largely excluding plaintiffs and all others from use of the water over those lots for the constant private use of the city's tenants for its profit. This distinction and conclusion is borne out by the decision of the Court of Appeals in Re Mayor of the City, 193 N. Y. 503, 87 N. E. 759, where the court was dealing with the question of the elements of value of a pier right in the Hudson river, granted by the city to an individual in a deed with covenants quite like those in this case when the pier adjoined an unfilled water lot of the city. The court said:
The evidence shows that two slips between the city piers at Thirty- Ninth street and Fortieth street, and those between Fortieth street and Forty-First street are usually blocked with coal barges, with railroad floats carrying box cars on them, with cattle boats using a runway for cattle at the side of the piers, and all are being moored in the slips for the use and benefit of the lessees and other tenants of the city for the pecuniary profit of the city. This and the dredging of the soil of the plaintiffs certainly are more than a privilege of sufferance. Whittaker v. Burhans, 62 Barb. (N. Y.) 237; Wall v. Pittsburgh Harbor Co., 152 Pa. 427, 25 A. 647, 34 Am. St. Rep. 667.
The wharfage rights of the city at the piers in Thirty-Ninth, Fortieth, and Forty-First streets as far at Thirteenth avenue under the deeds before us cover only the ends of those piers and not [271 U.S. 364, 399] their sides. This is clear, because the grantees of the deeds were vested with the wharfage on Thirteenth avenue along the river extending from Thirty-Ninth street to Forty-First street, except that at the ends of the cross streets. In this state of the case, the rights of the city, having parted with the sovereign regulation of navigation in the water over these lots, are not different from those of the owner of the upland, who builds out his pier to deep water. His right is limited to the front or end of the pier for his private use.
Judge Cullen, in Jenks v. Miller, 14 App. Div. 480, 43 N. Y. S. 932, points out that:
The same principle is approved in Consumers' Coal & Ice Company v. City of New York, 181 App. Div. 388, 394, 169 N. Y. S. 92, where it said that privately owned land under public waters is subject to the navigation of vessels over it, but cannot be appropriated by others to enlarge the berths at private piers. Compare Keyport Steamboat Co. v. Transportation Co., 18 N. J. Eq. 511, 515; United States v. Bain, 24 Fed. Cas. 940, No. 14,496.
Our conclusions are that Appleby and Latou were vested with the fee- simple title in the lots conveyed, and, with a grant of the wharfage at the ends of the lots on the river, that with respect to the water over those lots and the wharfage the state and the city had parted with the jus publicum and the jus privatum, and that the city can only be revested with that by a condemnation of the rights granted.
What, then, is the effect upon the rights of the parties of the fact that the grantees only filled the part of lots [271 U.S. 364, 400] conveyed east of Twelfth avenue? The plaintiffs are not in default in this because there was no covenant on their part to fill. Duryea v. Mayor, supra, at page 596; Id., 96 N. Y. 477, 496; Mayor v. Law, supra, at page 391 (26 N. E. 471). The filling was left to their convenience. They were not in default with reference to filling in the streets and avenues, because their covenant to do so was only on condition that the city should require it, and only when it did so. The reason for their delay in filling the remainder of the lot beyond Twelfth avenue was doubtless due to the passage of the act of 1857 and of the act of 1871, and their reasonable expectation that the city would condemn their rights, and expectation that was confirmed by the condemnation proceeding which was directed to be begun in 1890 by the dock commission, and was begun in 1894, and remained without prosecution, and operated as a dead hand upon this property for 20 years, until 1914, when the city discontinued it. Thereupon this suit was promptly brought.
The rights of the plaintiff with reference to the use of the water over their lots lying between the bulkhead line and Twelfth avenue are not affected by the order of the Secretary of War. The evidence shows that for 100 feet or more inside the line the water over these lots is made part of the slip and city mooring place for the city's pier; that in order to adapt it to such a purpose the soil in the lots is being constantly dredged, the dredging having increased the depth of the water from 3 feet to 16 and 20 feet. This has been done by the city on the assumption that, because it is water connected with the river, the city may improve its navigation. As the city has parted with the jus publicum in respect to these lots, it may not exercise this power, and must be content with sailing over it with boats as it finds it. The dredging of the mud in those lots to a depth of 15 feet is a trespass upon the plaintiffs' rights. They have a right at [271 U.S. 364, 401] their convenience to fill both lots from the bulkhead line easterly to Twelfth avenue and beyond. And we know from a record in a related case, argued with this and to be decided this day ( 271 U.S. 403 , 46 S. Ct. 581), that they have applied for permission to fill the lots and are pressing their right to do so. So, too, the use of the water over these lots inside the bulkhead line for mooring places, berths, or slips by the city and its tenants, as we have shown, violates the rights of the plaintiffs. They are entitled to an injunction against both.
The order of the Secretary of War of 1890 fixing the bulkhead line 150 feet west of Twelfth avenue, and allowing pier extensions far beyond Thirteenth avenue, to 700 feet from the bulkhead line, does not take away the right of the plaintiffs to object to the city's dredging their lots, or to its using the water over their lots for what is in effect an exclusive slip and mooring place. The order did not restore to the city the power as against these plaintiffs to regulate navigation over their lots, and so did not make the act of 1857 and the act of 1871 with respect to the spacing of 100 feet between piers and for mooring places adjoining the piers effective to defeat those deeds. The action of the city in making these deeds and covenants was, of course, subject to the dominant right of the government of the United States to control navigation; but the exercise of that dominant right did not revest in the city a control and proprietary right which it had parted with by solemn deed and covenant to these plaintiffs.
The only just and possible result of the Secretary of War's order is that the enjoyment by the plaintiffs of their rights under the deeds is qualified to the extent of a compliance with it without conferring any affirmative power upon the city to detract from the rights which it had granted. The plaintiffs are prevented from solidly filling between the buikhead line and Thirteenth avenue, but the order expressly authorizes the substitution for such [271 U.S. 364, 402] filling of the construction of piers on piling driven into the lots of the plaintiffs. To whom is given the right to build piers over these lots? The government does not attempt to take it away from the owners of the lots. It does not attempt to vest it in the city. It could not do so if it would. The right must reside in those who have the ownership of the land under the water and who until the Secretary had made his order were entitled by their grants to use the solid filling up to the line of Thirteenth avenue, without reference to the bulkhead lines or to the 100 feet spacing between the piers under the acts of 1857 or 1871
The lots have been bought and paid for, subject only to control by the general government in the interest of navigation. The general government, through its agent, says it does not require open water for navigation, but is sufficiently satisfied by piers on piles extending over the water. The city has by deed granted to the Applebys the wharfage and cranage rights upon these lots. What is there to prevent the Applebys, by the construction of piers on piles over their lots, in conformity to the Secretary of War's order, from enjoying the profit from that wharfage?
It thus is seen that the limitations on the right of the city to use the water over the lots outshore from the bulkhead line are no different from what they are inshore of the bulkhead line. The right of the city in respect to the use of the water over the lots beyond the bulkhead line is, as is said in Re Mayor of the City, supra, already quoted, merely a privilege by sufferance, and not a legal right, and lasts only until these lots may be covered by piers on piles, as allowed by the Secretary of War.
The plaintiffs are therefore entitled also to an injunction to prevent the dredging of their lots by the city from the bulkhead line to Thirteenth avenue, and also to prevent the continued use of the water over their lots in that same [271 U.S. 364, 403] extent as a slip or permanent mooring place for the adjoining piers of the city. They are also entitled to a specific injunction against the overhanging platform which was put out by the city for its tenants on the north side of the Thirty-Ninth street pier.
The application of the acts of 1857 and 1871 by the courts of New York would reduce the rights which were intended to be conveyed in these deeds to practically nothing, and would leave the grantees only the privilege of paying taxes for something quite unsubstantial. The qualification of those rights by the order of the Secretary of War still leaves value in the deeds, if the acts of 1857 and 1871 are invalid, as we hold them to be when applied as they have been in this case.
The judgment of the Supreme Court of New York is reversed for further proceedings not inconsistent with this opinion.
[ Footnote 1 ] Shaded as herewith published.