Wetmore v. Atlantic White Lead Co.

By the.Court, Emott, J. This is an action for damages, brought against the defendant, for refusing to permit the plaintiff to unload a cargo of coal upon certain premises in the occupation of the defendant, fronting upon the East river, for the purpose of transportation across these premises to the street. The plaintiff claims no special or private right' to the use of the premises, but complains of their appropriation by the defendant as a public injury, and of his exclu-. sion therefrom as a wrong to himself, inasmuch as he is thus deprived of a right which he possesses in common with the whole public. The land upon which the plaintiff sought to deposit his cargo has been reclaimed from the waters of the East river by the defendant or its predecessors and grantors, by filling in and the erection of piers or artificial structures. It lies below the original low water mark of the river, and in its natural.bed or channel. There is not, however, any allegation or proof that by these structures the channel of the river was unduly narrowed, or that any injury was done thereby to the navigation of its waters. On the contrary, the structures occupied by the defendant are entirely within an exterior bulkhead line established by legislative authority. (Laws of 1836, ch. 484.) The claim of the plaintiff to the free and public use of these wharves seems to rest upon two grounds: first, that these erections are an unlawful appropriation by a private person of a public highway, and therefore are a purpresture or a nuisance; and secondly, that these piers having been erected upon ground covered with the waters of a navigable river, cannot be appropriated to private use, but must continue a highway, precisely as the waters would be if they still covered the land at the place in question. The title of the defendant to these lands, is derived from the owners of the adjacent upland by deed, and — 91 — from the state by act of the legislature, coupled with a release or conveyance by the city of 3STew York of all their rights in the lands below the high water mark. The original shore line and the present exterior line of bulkheads run at this point in a direction nearly east and west. The original low water mark was, as I understand the proof, between twenty and fifty feet north of or below what is now known as Marshall street, which is the nearest street or road to the shore running parallel with it. The original high water mark is not very distinctly proved or indicated, but it would seem to have been nearly where Marshall street now is. The city of Hew York, as I have said, conveyed to one Jackson, who was then the owner of the adjacent upland, their interest in the shore, which would seem to have been comprised between Marshall street and the river, or the then exterior line of bulkheads. This conveyance was in 1810, and the outer bulkhead line was at thafitime north of Marshall street. The grantors of the defendant" derived title from Jackson. The terms of their conveyances are not stated, but the deeds to the defendant convey the lands lying north of Marshall street, and between that and the Bast river, together with all rights of docking and filling and using the lands under water opposite to these lands, and in another instance all the water rights and lands under water. The title of the defendant or its grantors to the lands under water, exterior to the original low water mark, and where the wharf was constructed, in reference to which the present question arises, is foxmded upon certain acts of the legislature passed in 1836, 1848 and 1850. In 1836 the legislature, by statute, fixed the permanent exterior bulkheak or water line of the city of Brooklyn. (Laws of 1836, oh. 484.) The defendant’s structures are all within and x-egulated by this line. They were erected in part during or before 1836, and in part after that time and before 1848, when the next statute affecting the rights of the parties was passed. An act was passed March 31, 1848, (Laws of 1848, chap. 156,) subsequently amended — 92 — in 1850, (Laws of 1850, ch. 313,) which provided that it should be lawful for the owners of certain lands on the East river in the city of Brooklyn, including among others • these lands, to erect, construct, build and maintain bulkheads or wharves on the lands under water in front of their lands, as far into the river as the permanent water line established by the act of 1836. It is true that the structures now occupied by the defendant had been erected previous to the passage of this act. But they had been erected, by the owners of the adjacent shore and upland, and were upon the territory directly included within the provisions of the law, and it would be an absurdity to hold that while the act of 1848 would, beyond dispute, have- authorized the individuals who then owned the shore and adjacent lands to erect new bulkheads in these waters, if the existing structures were removed, so as to restore the waters to their original condition, it would not sanction the use and maintenance of the erections of a precisely similar character, which they had already placed within these limits. The effect of the acts of 1848 and 1850 undoubtedly was to convey and confirm to the owners of this shore and water front, a title to the lands under water as far as the exterior line of 1836, or to the use of them, for piers or bulkheads, so far as the state was concerned. The defendant has therefore shown a title from the owner of the adjacent uplands, from the city of Hew York as to the shore between low and high water mark, and from the state to the ownership or use of the lands below .high water mark, as far at least as the acts of 1848 or 1850 have the effect to convey a title. It must be observed, also, as part of the facts in the case, that the place or point at which the plaintiff claimed the right to unload his cargo, was not and never would have been a public street or highway, if the territory in question was regarded as being or having become land. The nearest street on the north was Marshall street, running parallel with the river. Assuming, as I have done in the statement of the facts just made, the most favorable — 93 — conditions for the plaintiff, still between the street and the low water mark or bed of the river was the shore, which was neither a highway nor the property of the state or the people, but private property, while beyond this the structure occupied by the defendant extended out to the channel. On the east, Hudson avenue comes down to the river, but it reached the original shore at a point some distance easterly of the place where the plaintiff moored his barge. There is no allegation that the defendant is obstructing the termination of this street upon the river, or appropriating it to private uses. There was something said in the argument for the plaintiff, of a right to have access to the sides of this street. But the street, so far as it extends into the water below the original shore line, is carried out upon the wharves of which the defendant’s structures form a part. It was not extended upon a pier into the river, independently or beyond these wharves, nor is there any complaint of obstruction in the way of access to the sides of any pier. If the defendant’s structures had not been erected, this street would have had no existence at this point. If the plaintiff has any such rights as he claims, they must grow out of the relations of these wharves to the waters which they have displaced, and not to any streets which have been continued over them, for to none such did the plaintiff bring his vessel. It seems to me that this brief statement of the leading facts of the case will itself remove many of the difficulties suggested by the ingenious .and elaborate argument of the plaintiff’s counsel. At least I feel no difficulty in disposing of the questions which it raises. It was the object of a portion of the argument for the plaintiff to show that the acts of the legislature, relating specially to these wharves or erections, do not operate as grants of the exclusive property of the bulkheads or wharves, but simply to confer a franchise, the right to maintain wharves and to demand wharfage, or the emoluments fixed by law for their use. It might be a sufficient answer to, this — 94 — argument in the present case, to say that the plaintiff made no offer to pay any compensation to the defendant for the use of their wharf, but asserted an unqualified right to use it as a highway, and under a claim of a general public easement. But it would not be a just construction of the act of 1836 to regard it as merely legalizing the continuance of wharves or bulkheads upon the lands described, without conferring any exclusive rights upon the persons who should construct them. These persons were the owners of the upland adjacent to the river, and they had also acquired the title of the city of New York to the shore. Although the navigable waters of the Bast river are a public highway, yet this did not authorize the use of the defendant's lands or passage over them, for the purpose of reaching the bed of the . stream. The rule of the civil law in regard to the rights of the public to the use of the ripa or bank of a navigable stream for landing, towing, &c., has never been adopted by the common law. On the contrary, the banks of public rivers are, with us, the private property of the adjacent owners, as fully as their other lands, except only where they are crossed by public highways leading to the stream. (Hale de Jure Maris, 73, Harg. ed. Blundell v. Catterall, 5 B. & A. 268.) If this property had remained in its natural condition, no one could have asserted a right to land or unlade goods upon the lands of the defendant on the bank of the river, or upon the shore adjacent to it, without their consent. The act of the legislature was intended to confer additional rights and privileges upon the owners of these lands adjacent to the river. It was passed not only to sanction and legalize the structures which they might erect, or which they had erected within the limits defined by the act, so as to protect them from civil or criminal liability for their construction, but to confer upon them the title to these structures, and to the lands which they occupied, or certainly to their exclusive use. The defendant or its grantors had been at great expense in filling in these waters and building these wharves, and so far — 95 — as any other individuals or the public at large is concerned, the act of the 31st of March, 1848, must be construed as conferring upon them an absolute and exclusive right to the possession and enjoyment of their wharves, bulkheads, &c. What estate in the lands under water passed or was conveyed by the state, might be a question between the state and the grantors named in the act as their successors. As to third persons, it is sufficient that the statute gives an absolute and exclusive right of possession and enjoyment. In The People v. Lambier (5 Denio, 9) a question as to the rights of the public to access to the East river, under an act of a similar character to that now under consideration, was presented to this court. It was laid down in that case that the authority given to adjacent owners to fill in and reclaim lands below high water mark, did not authorize the appropriation to private use of any portion of such lands which lay between the original terminus of a street which had been laid out to the river, and the bulkhead in front of such terminus, after the extension of the wharf, under the act. It was held that if such a structure was continued in front of the existing termination of a street upon the river, the public right of way would continue over and across it to the new bank or front of the bulkhead. It follows from the decision, and indeed it was a part of the reasoning of the court, that the public rights of navigation and passage were relinquished by the act, so far as the lands were concerned which had been under the water in front of the property of the persons mentioned in the act, and not in front of the streets. The inference from this decision, as from the whole concert of authorities, is that in such cases the only access of the public to the navigable waters of the stream is by the existing highways upon the land, or their direct prolongation or continuation. There is no allegation in the present case, and no evidence, that the erection of these wharves was the creation of a nuisance. It is distinctly stated by Ld.. Hale, (De Jure Maris, — 96 — p. 85,) and it has always been recognized as the rule of law, that a building below low water mark is not in itself a nuisance. Whether it be so or not depends upon its effect upon the channel or the navigation of the stream, and is always a question of fact. There is no pretense in the present case ■that the channel or the ijavigation have been injuriously affected by the wharves of the defendant, and therefore no right to abate or to pas^' over these wharves can be asserted against them as a nuisance. It is impossible, I think, in the face of the act of 1848, and of the act of 1836, establishing a permanent bulkhead line in front of the city of Brooklyn, to regard the appropriation of the waters of the river by these wharves even as a purpresture; but if they were so,.it would not follow, so long as they were not a nuisance, that a private individual like the plaintiff could either abate them or enter upon them without the consent of the owners. This action, it is contended, may be maintained upon the theory that as the waters which have been displaced by the defendant’s wharf were a public highway, the wharf itself became and must continue a part of that highway. How far such a doctrine as this could be maintained in respect to a wharf or structure which had been constructed in the bed of a public river, without authority of law; how far the public would have the same right to pass with carriages over the land thus artificially made, which they had originally, to pass over the water in boats, is a question which need not here be discussed. It would be going to an extravagant length to contend that every, pier or wharf constructed with the sanction of the state, and under legal right by private individuals in or upon the channel of a navigable stream, must become a public highway like the river, and could not be withdrawn from public use. The whole practice of the state in its grants of lands under water, and the rules which have been recognized not only by the land office and the legislature but the courts in reference to such grants, are at varianee with such a doctrine. The acts of the legislature to — 97 — which I have referred in this case, like the numerous others of a similar character, authorized an appropriation of the lands under water to which they referred, by an artificial accretion to the adjoining lands. They permitted the conversion of the premises from water into land, and relinquished the rights of the public to their use as a part of the channel of the river. When reclaimed and covered with artificial structures, they became a part of the bank of the river, and were no longer subject to the public easement which affected the channel. As far as such artificial accretions are made to public highways upon the bank or shore, they become a part of such highways, but when added to a portion of the bank over which no such right of passage existed, they are a gain to the adjoining proprietor, and do not bring with them a right of use or passage over the land, in consequence of the right of navigation which had existed over the waters which had been displaced by such additions to the land. [Dutchess General Term, May 12, 1862. We are of opinion that no such public right or easement as the plaintiff claims exists in respect to this wharf, and that he cannot recover in the present action. The verdict is set aside and a new trial ordered; the costs to abide the event. Emott, Brown and Scrugham Justices.]