Verplanck v. The Mayor, Aldermen and Commonalty of the city of New York, 2 Edw. Ch. 220

The Vice-Chancellor: It has been made a point in the cause whether the grantees, by accepting the grant upon the understanding of dedicating twelve feet to the public as a street and occupying the residue only for private purposes, could afterwards claim wharfage for any more than thirty eight feet of the front or southerly side of South Street. By the terms of the grant, they were bound to construct the wharf at their own expense and make South Street, along the entire front of fifty feet. This has been done.

The deed declares them entitled to all the emoluments accruing from the wharf or street fronting on the river opposite to the premises and every part thereof.

This right to wharfage upon the whole extent of fifty feet is thus, in terms, secured, although it was intended, by all parties, that a strip of twelve feet of land should be sacrificed to the public, Crane Street extended no further than to the northerly line South Street and so far the sacrifice was made ; but it did not carry with it a relinquishment of the right to collect wharfage at the bulkhead on the southerly side of South Street and this right remained upon the whole extent of the bulkhead, notwithstanding a part of the lot was given up to public use.

The owner of upland to which wharfage or other incorporeal hereditament is appendant, may apply it to any use or purpose he thinks proper; and, so long as he retains the ownership of the soil, he will be entitled to all such incorporeal right. A giving to the public of a perpetual right of way over land, without an actual grant or conveyance of the soil, is not a relinquishment of any rights which the giver might have as incident to the fee.

In the present case, there is nothing in the mere dedication of a portion of the lot between Front Street and South Street to the public for a street which can, in my opinion, impair the right of the grantees to the wharf-age or other emoluments to be derived from the use of the water and bulk-head in front of the grant. The right of the estate of Crommeline to wharfage upon the whole extent of his front of fifty feet, seems to have been conceded by the defendants.

The principle upon which the reports of their committee and the resolutions of their board proceeded, admit that the owner of a bulk-head or wharf against which a pier is placed, is not, thereby, deprived of wharfage.

Instead of wharfage at the bulk-head within the space occupied by the pier, his wharfage accrues from the use of the pier; and as there are a number of individual proprietors who contribute to the expense of building the pier and who are interested in the slip or basin formed by the bulk-head and piers, they become tenants in common of the revenue arising from the use of it and this revenue or income is apportioned among them according to the extent of each party’s ownership in the front or bulk-head.

In the present case, if the pier had been placed so as to have left no part of the bulk-head or wharf belonging to the Crommeline estate to the westward of the pier, then there would have been no difficulty. But, in consequence of the manner of locating the pier whereby a part of the bulk-head is comprised within Fulton Market Slip, the question is : whether the corporation have a right to refer the complainant or the devisees ®f the Crommeline estate to the outer end of the pier and to the easterly side thereof for all the wharfage which whole extent of their bulk-head entitles them to receive?

This point involves an enquiry into the powers of the corporation concerning public docks or slips and the location and construction of piers. Several acts of the legislature have been passed upon the subject; and they are now consolidated in the general law of 1813. (2. R.

Laws, of 1813. p. 431.) The 224. and 225.§. relate to the building of piers as private property; and the corporation are vested with authority to direct piers to be sunk and completed at such distances and in such manner as they, in their discretion, shall think proper and by such time as they shall appoint, at the expense of the proprietors of the lots lying opposite to the places where the piers shall be directed to be sunk, and then to grant to the owners of lots—meaning such as shall contribute to the expense— a community of interest in the piers to be sunk in proportion to the breadth of their respective lots, under such restrictions and regulations and within such limits as the corporation shall deem just and proper.

Now, all this is only a mere power which the corporation have to exercise. They acquire no interest or ownership in the piers here spoken of, unless the individual proprietors of the lots fronting towards the river refuse or neglect to construct the piers. In such an event, the corporation may proceed to do the work at their own expense and then become the owners and receive the wharfage for all vessels lying at the piers or they ma,y grant the right to others of making such piers and of receiving the wharfage. In the case of The Corporation of N. Y. v. Scott, 1.

Caines R. 543. it was held, under the authority of these sections, as they were contained in the act of 1801. (2. Kent & Rad. 129. §. 1. 8.) that the corporation could not reserve or take to themselves any wharfage arising from a pier built at the expense of individuals, nor any slip-age on the side of such pier adjacent to a public slip but not contiguous or on a line with the side of the slip. This decision was made in the year one thousand eight hundred and four. Two years afterwards the legislature passed an amendatory law, which granted additional powers and rights to the corporation: 4.

Webster & Skinner’s ed. 514. The partg t^¡g amendatory law most applicable take in the 228th. and 230th. § of the general law of 1813. And by the first of these, the corporation were authorized, at their own expense, to cause public basins to be formed and had power to take to their own use the wharfage and slipage, provided it did not deprive persons, who might have made piers by direction of the corporation, of any legal rights which they might have thereby acquired or interfere with any private rights of property or privileges held under grants of the corporation.

The present, is not a case within this section: because, although the object of the corporation was to form a public slip or basin opposite to Fulton Market, they did not construct the pier in question at their own expense—nor, indeed, could they have done so, placing it where they did, without infringing private rights acquired and held under previous grants from them.

Then, as to the 230. §., which declares that in all cases where the corporation shall think it for the public good to enlarge any of the public slips, they have full power to do so ; and also, that upon paying one third of the expense of building the necessary piers and bridges, they shall be entitled to the slipage of the side of the piers adjacent to the slips and also to one half of the wharf-age to arise from the outermost end of the piers.

This section, as its words import, was intended to apply to the case of public slips already formed which the corporation might be desirous of enlarging by an extension of the piers or by sinking new piers at the sides of the mouth of the slips. And I do not see how, according to its literal meaning, it can authorize the making of a public slip in the first instance by sinking a pier or piers against the bulk-head or wharf opposite to private property. But the difficulty still remains. The corporation appear to have proceeded upon the principle in this

section precisely as though the case were within it; and the individual proprietors appear to have assented or, at least, acquiesced in this mode. They agreed to contribute two thirds of the expense of building the pier and the corporation the remaining third. It was erected upon such terms. The parties could not have expected the corporation to assume and bear one third of the expense upon any other ground than that the westerly side of the pier was to be a public slip.

There was no inducement for them to engage in the work upon these terms in case the pier, when built, was to be deemed entirely private property or individuals were to participate with them in the emoluments of the public slip on the westerly side. Nor was there any necessity, for the sake of public convenience, in having a pier constructed that the corporation should contribute to the expense of building one to belong exclusively to the owners of the contiguous upland.

The statute gives the corporation a power of becoming owners or interested in piers in all cases where circumstances render it necessary for them to contribute to the expense. I must presume all parties were cognizant of the law and that, when the proprietors submitted to the terms and proceeded to build the pier at the joint expense of themselves and the corporation, they mutually understood the case to be one within the spirit, if not within the letter, of the 230. §.

I consider, under the circumstances and from the fact of permitting the corporation to contribute one third of the expenses, that the individual proprietors must be deemed to have given a practical construction to this part of the statute from which they are not now at liberty to depart.

It is said, however, that even if such would be the consequence, still it could only be so, provided the pier had been actually located and built where the resolution of the corporate board purported it should be, namely, at the foot of Crane-wharf Street; and that, by placing it on the easterly side and not directly opposite or at the foot of the Street, the corporation have been guilty of a mislocation, which gives them no right to the portion left clear on the westerly side and within the slip or basin. Tdo not perceive how the alleged mislocation can make any difference.

All the parties interested in the pier must be presumed to have had a knowledge of its location from the time it was first sunk; and they could not but have seen its position in reference to Crane-wharf Street.

And yet, with this before them, they permit the work to go on, without objection, and leave the corporation to pay one third of the expense and bear only two thirds themselves ( for there is no testimony to show they ever offered to pay any more.) If any of the individual proprietors jnten^e(j t0 c]ajm both sides of the pier as private property on account of the manner in which it was located, then they were bound to pay and should have offered to pay the whole expense of the building ; and if this had been done, perhaps they, who thus paid the whole amount, would have been entitled to the whole of the wharfage arising from both sides of the pier.

Since, however, they have left the corporation to pay their proportion, under the principle in the 230 §. of the statute, notwithstanding the location of the pier and so as to leave a part of what was private property within the public slip, I am of opinion it must be deemed a case within this

section and that the right to wharfage and slipage on the westerly side of the pier became vested exclusively in the corporation. According to the evidence of Dr.

Graves, which is uncontradicted, no injury or injustice will be done to the Crommeline estate or to any of the persons interested in the pier by considering all the part of the bulk-head situated westward of a line drawn lengthwise through the middle of the pier as having been relinquished to the corporation by the locating and manner of building it: at least, so far as regards the wharf-age or slipage in the public slip of which the pier was intended to form the eastern boundary.

No right exists in favor of the complainant or the representatives of the Crommeline estate to any wharfage or slip-age accruing on the westerly side of the pier; and the corporation are entitled to all such wharfage to their own use— the same being a public slip. The bill must be dismissed, with costs.