Steers v. . City of Brooklyn

Earl, J. Under his paper title and the acts of the legislature (Chap. 302, Laws of 1849, chap. 305, Laws of 1868, and chap. *56 518, Laws of 1880), there can be no doubt that the plaintiff was vested with the fee of the land to the cenier of Java street, and extending to the water-line of the East river and that he had a right tó maintain his wharf in front of his land and his one-half of the street and take and receive wharfage from all persons using the same. His fee in the street, however, was subject to the public easement for travel over the street to the water-line, and is still so subject. When, therefore, the defendant built a pier at the end of Java street thus shutting off the plaintiff’s wharf across one-half of the street from the water, it interfered with his rights and became liable to him for damages. That structure was a wrongful interference with the plaintiff’s franchise, secured to him by the acts of the legislature referred to. The plaintiff was, therefore, entitled to the judgment which was ordered in his favor. The court below was right in holding that the pier wrongfully built by the defendant across the end of Java street must be treated as an accretion to the upland or mainland, and thus so much of it as was in front of plaintiff’s half of Java street and in front of his wharf became his (subject, however, to the public easement for travel upon Java street), as it was attached to his soil and was between his land and the water-line. When soil is by natural .causes gradually deposited in the water opposite upland, and thus the water-line is carried further out into the ocean or othqr public water, it becomes attached to the upland, and, the title of the upland owner is still extended to the water-line, and the accretion thus becomes his property. ¡Natural justice requires that such accretion should belong to the upland owner so that he will not be shut off from the water, and thus converted into an inland rather than a littoral owner. The same rule should be applied for the same reason where the soil in front' of the upland has been wrongfully placed there by human hands. The wrong-doer should gain nothing by his wrong, and justice cannot be done to the upland owner except by awarding to him, as against the wrong-doer, the accretion attached to his soil as an extension thereof. (Ledyard v. Ten Eyck, 36 Barb. 102, 125; Langdon v. Mayor, etc., 93 *57 N. Y. 129; Mulry v. Norton, 100 id. 424; Gould on Waters, §§ 123, 124, 128, 148, 158; Angell on Tide Waters, 249.) The interlocutory judgment ordered a reference to take an account between the parties for all wharfage received by the defendant from the northerly half of the pier or wharf, since the 21st day of December, 1875, and it was provided that if the defendant did not account for such wharfage it must pay the plaintiff a sum equal to the reasonable wharfage during the time mentioned. In pursuance of the judgment a referee was appointed, and upon the hearing before him the counsel for the defendant, upon being called upon by plaintiff to present an account of the wharfage received by it, stated that he had no such account to render. Plaintiff’s counsel then offering to prove what was the reasonable wharfage, the counsel for the defendant, while objecting to the competency of the fact to bind the defendant, admitted that such reasonable wharfage during the period in question amounted to §1,250, to-wit: at the rate of $208.35 a year, and the referee ruling that such fact was competent, the defendant excepted. Counsel for the defendant further admitted, under the same objection, and also upon the ground of irrelevancy, that such reasonable wharfage from the twenty-first day of December to the date of the hearing was worth $156, and the- referee ruling such latter fact competent and relevant, the defendant excepted. Counsel for the defendant then offered to prove (1) that such wharfage was more than the plaintiff would or could have received from the bulk-head had not the pier in question been built; (2) the reasonable cost of building the pier in question ; (3) the cost of the reasonable and necessary repairs thereto during the period in question; (4) the reasonable value or expense of collecting such wharfage. Counsel for the plaintiff objected to each of these facts as incompetent and irrelevant, and the objections were sustained and defendant excepted. These exceptions point out no error. It was substantially conceded that the defendant had received the wharfage from so much of the pier as was in front of the north *58 eriy half of Java street, and while it could not or would not present any account of it, it admitted the amount of the reasonable wharfage during the period named. The money thus collected and received by it rightfully belonged to the plaintiff, and it was not proper to indulge in mere speculation whether the plaintiff would have collected so much from his bulk-head had the pier not been built, nor was it proper to prove the reasonable cost of building the wrongful structure, or of keeping it in repair, and the defendant having wrongfully collected the wharfage it could not be allowed any expense for collecting the same. Plaintiff had the right to collect his wharfage in his own way upon payment of such expenses as he should think proper to incur. On the whole we think the judgment should be affirmed, with costs. All concur. Judgment affirmed.