Appleby v. Delaney/Opinion of the Court
The relators base their writ upon the alleged impairment of their contract rights contained in the grant and covenants of their deeds by the plan adopted in 1916 under the act of 1871 (Laws 1871, c. 574) by the dock department, and approved by the sinking fund trustees, the execution of which the dock commissioner is enforcing by a formal refusal to grant permission as requested by the relators to fill up their lots. The authority of the dock commissioner and the sinking fund trustees under the act of 1871 is such as to make the plan and the refusal equivalent to a statute of the state, and, assuming that it is in conflict with the grant and covenants of relators' deeds, it is a law of the state impairing a contract obligation, under section 10, article 1, of the federal Constitution. New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, 8 S.C.t. 741, 31 L. Ed. 607; Williams v. Bruffy, 96 U.S. 176, 183, 24 L. Ed. 716; Walla Walla City v. Walla Walla Water Works Co., 172 U.S. 1, 19 S.C.t. 77, 43 L. Ed. 341; Mercantile Trust & Deposit Co. v. Columbus, 203 U.S. 311, 27 S.C.t. 83, 51 L. Ed. 198; Zucht v. King., 260 U.S. 174, 43 S.C.t. 24, 67 L. Ed. 194. We have jurisdiction of the writ of error under section 237 of the Judicial Code (Comp. St. § 1214).

The question in this case then is whether the deeds before us, construed in connection with the sinking fund ordinance of 1844, gave to the plaintiffs the right to fill in the lots without the consent of the city. Each deed described the land conveyed as follows:

'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, etc., together with      all and singular the privileges, advantages, hereditaments and      appurtenances to the same belonging or in any wise      appertaining.'

The grants were in fee simple. The grantees respectively covenanted that they would, upon the request of the city, build bulkheads, wharves, streets, and avenues to form part of Twelfth and Thirteenth avenues, and Thirty-Ninth, Fortieth, an Forty-First streets, which were within the general description of the premises conveyed. These were excepted therefrom for public streets. The grantees agreed to pay the taxes on the lots lying between the streets. There was a covenant that they would not build the wharves, bulkheads, avenues, or streets previously mentioned until permission had been given by the city. The city covenanted that the grantees might have wharfage on the westerly side of the granted premises fronting on the Hudson river, excepting at the westerly ends of the cross streets, which was reserved for the city.

In a deed of a similar water lot on the east side of the city, with exactly the same covenants, the question arose in the case of Duryea v. Mayor, etc., 62 N. Y. 592, 596, whether the covenants with respect to filling the streets applied to the filling of the water lots between the streets, and it was held that they did not. The court said, at page 596:

'The only covenant in the deed for making lands applies      exclusively to the building of streets, wharves, etc., and      there is not a word pertaining to the intermediate spaces.'

In the same case reported in 96 N. Y. 477, the sinking fund ordinance, not referred to in the first decision, was pressed upon the court to change its conclusion in the first hearing and to hold that the city had the absolute right, by reason of the ordinance, to forbid the filling of the land conveyed. As to that the court said:

'It may very well be doubted whether the construction      formerly given by this court to the covenants contained in the deed should not also be deemed applicable to the      provision of the sinking fund ordinance. The object of this      provision was not to cause any interest in the land conveyed      to be retained by the grantor, or to postpone the period of      enjoyment of its owners, or increase the security of the      public creditors, but was obviously designed to enable the      grantor to shield itself from the burden of caring for and      maintaining the piers, wharves, and streets until such time      as it should deem the assumption thereof profitable and      expedient, and to fix the time and manner of erecting those      structures with reference to the introduction therein of      water, gas, sewer pipes, and other necessary conveniences      which naturally fell under the supervision and control of the      city authorities. The accomplishment of this object would in      no way be materially interfered with by allowing the grantees      to proceed with their contemplated work of redeeming their      lands from the water and realizing the benefits, which were      the sole inducement to them for its purchase.'

It referred to the conduct of the city through all its departments for a period of upwards of 20 years in dealing with the ordinance and deeds like this as having affixed the interpretation claimed by the relators as the true intent and meaning of both. It said further:

'The rule by which this ordinance is to be construed is such      as applies to the interpretation of the acts of other      legislative bodies, and is that which shall best effectuate      the intent of its authors. The reason and object of an act      are to be regarded to arrive at its meaning, and while it is      not competent to interpret that which has no need of      interpretation, or to deny to clear and precise terms the      sense which they naturally present, yet, when such terms lead      to manifest injustice and involve an absurdity, law and      equity both require us to give such an effect to the language      used as will accomplish the obvious intent of the      Legislature. * * * 'The only lands expressly provided to be made by the      ordinance are those constituting the piers, wharves, streets,      and avenues, and since it is unnecessary in order to give the      clause in question an office to perform, to extend it to      lands outside of such streets, and to create a right      unconnected with those clearly intended to be granted, it is      in accordance with settled rules of interpretation to limit      the effect of general language to the accomplishment of the      object undoubtedly intended. * * * If it be held that the      words 'make land in conformity thereto,' as used in the      ordinance, apply only to the lands necessary to form the      piers, bulkheads, and streets, the defendant will not only be      protected in all of the rights intended to be secured to it,      but the grantee will receive the benefits of his purchase and      the deed will be free from objection on account of the      apparent repugnancy existing between the interest actually      conveyed and those apparently reserved.

'It is quite inconceivable that parties should purchase land      burdened with the condition that it should be enjoyed only      the the permission of the grantor, and a construction having      that effect, should only be adopted when no other is possible      or sustainable.'

After giving this construction to the deed and ordinance, the court then examined the evidence, and found that the common council had by its conduct consented to the filling in of the lots, and because, in its summing up, the court referred to the latter ground, it is insisted that its chief discussion and conclusion upon the construction of the ordinance and deed are not to be treated as authority. It should be noted that the construction of the deed by the court in the Duryea Case upon this point was referred to approvingly as authority in Mayor v. Law, 125 N. Y. 380, 391, 26 N. E. 471, 472, where, citing the Duryea Case, the court used this language with respect to a similar covenant:

'The grantee became the absolute owner of the land between      the streets, the land granted, and (that) he could properly fill up whenever he choose, suiting his own      pleasure as to the time and manner of doing it, but there was      nothing in the grant binding him to fill it up.'

The Court of Appeals in the present case disposed of the question we are discussing as follows:

'To construe the ordinance and the grants as permitting the      filling of the land between the streets at the will of the      grantee and prohibiting the building of the wharves and      streets, without the consent of the common council, would be      unreasonable.'

We cannot agree with this. We think the reasons advanced by that court in the second Duryea Case to sustain the opposite construction of the deed and ordinance are much more persuasive. It has added force when it appears from the opinion in the Duryea Case and the conclusion of the Appellate Division in this case that such construction of such deeds and the ordinance has become a rule of property for more than 50 years. It is not reasonable to suppose that the grantees would pay $12,000 in 1852 and 1853, and leave to the city authorities the absolute right completely to nullify the chief consideration for seeking this property in making dry land, or that the parties then took that view of the transaction. In addition to the down payment, the grantees or their successors have paid the taxes assessed by the city for 75 years, which have evidently amounted to much more than $70,000. It does not seem fair to us, after these taxes have been paid for 60 years, in the confidence justified by the decision of the highest state court, that there was the full right to fill in at the pleasure of the grantees and without the consent of the city, now to hold that all this expenditure may go for naught at the pleasure of the city.

If the sinking fund ordinance is to be applied at all to the filling in of the land in the limits within the deeds, it should in our judgment be regarded as a mere police requirement of a permit incident to the filling and to supervising its execution by regulation as to time and method, so that it should not disturb the public order. Had the refusal of the commissioner of docks, charged with the police regulation as to the docks, taken this form, an application for mandamus might well have been denied, because only an effort to control the police discretion of the public authorities; but the refusal to permit the filling to begin is not put on any such ground. It is denied because the city has a different plan, which does not permit the filling at all. This is an assertion of the right of the city absolutely to prevent the filling which is an impairment of the obligation of the contract, made by the city with these plaintiffs, in violation of the Constitution of the United States.

The judgment of the Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion. 

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