Bedlow v. . Stillwell

O’Brien, J. The plaintiff is the widow of Alfred Bedlow, who died on the 15th of May, 1891, and she brought this action to recover dower in certain premises in the city of Flew York, consisting of lands now known as South street, the fee of which was in the -plaintiff’s husband at the time of his death, together with a wharf and pier attached to the said lands, the pier being known as Flo. 49 East river. The trial court determined that the premises were so situated that the plaintiff’s dower could not be admeasured and laid off to her, and, therefore, awarded to her a sum equal to one-third of *297 the annual rental value of the property, to be paid to her in equal quarterly installments during her natural life, and that the sum so to be paid remained a charge upon the property during the period of plaintiff’s natural life. The plaintiff’s claim is resisted by one of the defendants upon the ground that she has title to the property under two deeds from the husband in his lifetime conveying the entire interest in the property. The plaintiff did not unite with him in either of these deeds. The property was originally conveyed by the city to one Henry Rutgers, who died about the year 1830. The plaintiff’s husband derived title from him through various mesne conveyances, and at the time of his deatli it is admitted that he was seized and possessed of an undivided one-sixth part of the property.' In 1834 the wharf property and the lots lying to thé north were leased by the executors of. Rutgers for a term of 21 years with the privilege of renewal for another term of the same duration. The tenants under this lease procured permission from the city authorities to construct a pier in front of the land, and under this permission the pier was built and attached to the bulkhead and wharf upon the land, and is still there. The pier extends into the river from the bulkhead over 300 feet and is thirty feet in width. It is appendant or appurtenant to the wharf, and for all practical purposes is a part of it. The principal, if not the only, question involved in this appeal is whether this pier erected for the use of the wharf, the wharf itself being attached to the fee of the street, is real property in which the widow is entitled to dower. The courts below have held that the plaintiff’s husband had an estate of inheritance in the property, to which the widow’s right of dower attached. We are relieved from the necessity of any lengthy examination or discussion of this question since we are of the opinion that it has already been decided by this court. It appears from the record that during the lifetime of the plaintiff’s husband, he, with others, brought an action against certain persons *298 then in possession of the property to recover the same. It was an action to recover real property, and the character of the wharf and pier, whether real property, alienable and descendible as such, or something else, was involved in the litigation. The decision in the courts below was in favor of the defendants, but upon appeal to this court the judgment was reversed and the right of the plaintiff’s husband to recover it as real estate was sustained. (Bedlow v. N. Y. F. Dry Dock Company, 112 N. Y. 263.) We can add nothing to the luminous and exhaustive discussion of the question which is to be found in that case. The whole question now before us is fully covered by that decision. It is there very clearly shown that the right which the plaintiff’s husband then had in the property was real estate, and although the pier was erected upon land under water which belonged to the state, yet it was erected under and in pursuance of a statute and by the permission of the city authorities, and that under such circumstances it became attached to the realty and part and parcel of it. If it were necessary to add anything to the discussion in that case we might cite other authorities in which the same or similar questions have been passed upon. (Steers v. City of Brooklyn, 101 N. Y. 51; Smith v. Mayor, etc., 68 N. Y. 552; Lombard v. Kinzie, 73 Ill. 446.) These cases answer all the arguments presented by the learned counsel for the defendants against the plaintiff’s right to recover dower. He contends that inasmuch as the pier was erected upon a mere, easement which the owner of the uplands had, the permission of the city authorities to construct it was a mere license, revocable at pleasure. This argument would, of course, show that his own client had no title to the property under the deeds from the plaintiff’s husband in his lifetime, and its only effect would be to prove that the title to the pier is still in the state or in the city. While it might defeat "the plaintiff’s claim, it would also defeat the defendants’ claim. We think, however, that the permission given to the tenants of Butgers to construct at their own expense this pier, which became appurtenant to the wharf, was something more than a mere *299 license revocable at the pleasure of the state. It was a right to use and maintain the pier in perpetuity, and neither the city nor the state could lawfully deprive the owners of its benefits without just compensation. This proposition is made quite plain in the cases to which we have referred. The judgment of the court below was right and should be affirmed, with costs. All concur (Vann, J., in result), except Parker, Oh. J., not sitting. Judgment affirmed.