Appleby v. City of New York
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 conveyed 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.

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:

'All that certain water lot or vacant ground and soil under water to be made land and gained out of the Hudson or North River or harbor of New York, and bounded, described, and containing as follows; that is to say:

'Beginning at a point of intersection of the line of original      high-water mark with the line of the center of Thirty-Ninth      street and running thence westerly, along said center line of      Thirty-Ninth street, about 1,065 feet, to the westerly line      or side of Thirteenth avenue, said westerly line or side of      the Thirteenth avenue being the permanent exterior line of      said city, as established by law; thence northerly along the      westerly line or side of the Thirteenth avenue, 258 feet 4      1/2 inches, to a line running through the center of Fortieth      street; thence easterly along said center line of Fortieth      street, about 1,126 feet 11 inches, to the line of original high-water mark; and thence      in a southerly direction along said center line of original      high-water mark, as it runs to the point or place of      beginning, as particularly described, designated, and shown      on a map hereto annexed, dated New York, June, 1853, made by      John J. Serrel, city surveyor, and to which reference may be      had; said map being considered a part of this indenture.

'The premises conveyed being colored pink  on said map, be the same dimensions more or less.

'Saving and reserving from and out of the hereby granted premises, so much thereof, as by said map annexed forms part or portions of the Twelfth and Thirteenth avenues, Thirty-Ninth and Fortieth streets for the uses and purposes of public streets. * * *

'To have and to hold the said premises hereby granted to the said Charles E. Appleby, his heirs, and assigns to his own proper use, benefit and behoof forever.'

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:

'All manner of wharfage, cranage advantages or emoluments      growing or accruing by or from that part of the said exterior      line of the said city, lying 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.

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 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 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 federal statutes and the action of the Secretary of War      in establishing a bulkhead line across the granted premises      thereby constituted the waters beyond said bulkhead line      navigable waters, and though the federal government      established a pierhead line further west in the river, as the      federal government did not attempt to provide regulations as      to the building of piers, wharves, or docks within said      space, the state government had a right to regulate the      construction of docks, piers, and wharves between said      bulkhead line and pierhead lines, and having by chapter 763      of the Laws of 1857 provided that no piers should be erected      within 100 feet of another pier, and having by chapter 574 of      the Laws of 1871, as supplemented and amended, authorized the      city of New York, through its officials, to adopt a plan for water front      of the city of New York, including the erection of piers      thereon, and the city having pursuant to said resolution      adopted a plan requiring piers to be erected in Thirty-Ninth,      Fortieth, and Forty-First streets, and said piers having been      erected, thereby prevented the plaintiffs from erecting any      pier, wharf, or other structure whatsoever upon their      premises under water between the said bulkhead line      established by the Secretary of War and Thirteenth avenue.

'Section 33. The plaintiffs are not entitled to an injunction restraining the city of New York from using or authorizing the use by others of the plaintiffs' premises either within or without the federal bulkhead line, for the purpose of mooring, docking and floating boats.'

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:

'When the Secretary of War established the bulkhead line, the      title of the state, the city, and its grantees beyond such      line was subordinated to such use of the submerged lands as      should be required for the public right of navigation. No      private property right requiring compensation was taken or      destroyed by the establishment of such line. The owner's      title was subject to the use which the United States might      make of it. * * * Plaintiffs have no authority to fill in any      portion of their lands west of the bulkhead line. The city of      New York, in the execution of its plans for the improvement      of the water front westerly of such line for the purpose of      navigation, invaded no right of plaintiffs.'

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.

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.

[Argument of Counsel from pages 374-375 intentionally omitted]

Messrs. Charles J. Nehrbas, George P. Nicholson, and William C. Cannon, all of New York City, for defendants in error.

[Argument of Counsel from pages 376-378 intentionally omitted]

Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court. 

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