author: Campbell, J.

text:
    Thompson and others v. The City of New York and other’s.
    Under the second section of the act of April, 1806, providing that in all cases where “the mayor, aldermen, and commonalty of the city of New York shall think it for the public good to enlarge any of the slips in the said city, they shall be at liberty and have full power so to do, and upon paying one third of the expenses of building the necessary piers and bridges, shall be entitled not only to the slipage of that side of the said piers which shall be adjacent to such slips respectively, but also to one half of the wharfage to arise, from the outermost end of the said piers,” the corporation has the power to erect piers, and to extend them into the river, for the purpose of enlarging the slips.
    The word “ slip” is peculiar to this state, in its application to structures or places for the accommodation of vessels lying in port.

      The addition of a pier to one side of a slip, will operate as an enlargement of the slip : even though no corresponding pier is extended from the other side of the same slip.
    Where a hill was filed by the owners of certain piers in the city of New York, against the corporation of the city and others, claiming that the plaintiffs were entitled to the entire wharfage derived from the outermost ends of those piers : that they had enjoyed such wharfage from the first sinking of the piers in the year 1809 : that upon the extending of the piers in 1839, they assented to the extension, on the condition that their exclusive rights to such wharfage should be reserved to them ; and the defendants insisted that they and the plaintiffs were tenants in common, that there had been no actual ouster, nor acquiescence by them in the exclusive enjoyment oí the right by the plaintiffs, and that there was no sufficient proof to warrant the court in presuming a grant; Held, that it was the province of a jury to determine whether or not a grant would be presumed, and that the question to be submitted to the jury would be, whether the plaintiffs, and those under whom they claimed, had acquired, by prescription, an exclusive right to the whole of the wharfage at the outermost end of the piers, previous to their assent to the extension in 1839.
    (Before Duel, Mason, and Campbell, J.J.)
    Jan. 23, 24, 25, 26 ;
    April 1, 1850,
    This was a suit originally commenced in the late court of chancery. The plaintiffs, Samuel M. Thompson, Theodore Pol-liemus, and Robert J. Murray, in their bill of complaint alleged that they, with other persons as thereinafter mentioned, were interested in and legally entitled to a part of the wharfage accruing from two certain piers, known as numbers 19 and 20, respectively, on the East river, in the city of New York; pier No. 19 being on the easterly side of the slip at the foot of Maiden lane, formerly called Fly Market slip, and pier No. 20, being on the westerly side of Purling slip ; and they claimed that their right extended to and embraced the wharfage accruing from the easterly side of pier No. 19, and from the westerly side of pier No. 20, and also from the whole of the outermost ends of both the piers. Til at previous to the building of the two piers, they and their co-proprietors, or those persons from whom they derived their rights, were entitled to all the wharfage accruing on South street between Maiden lane and Burling slip, and that such right was derived from grants theretofore made by the mayor, aldermen, and commonalty of the city of New York, for the lots and premises lying between Maiden lane and Burling slip, and fronting on the then exterior line of the city on the East river. That in 1809, while the proprietors, who then held the rights now represented by complainants, were in the enjoyment of the whole of the wharfage accruing on South street, between Maiden lane and Burling slip, the two piers Nos. 19 and 20, were built, running out from South street into the East river, by order of the mayor, aldermen, and commonalty, and that those proprietors contributed and paid two thirds of the expense of building those piers, and the city paid the other one third of such expense. That for upwards of thirty years from the time when piers Nos. 19 and 20 were so built, those proprietors did collect, receive, and enjoy, without let, hindrance, or interruption of any kind from the mayor, aldermen, and commonalty of the city, or from any other party, all the wharfage accruing not only on the easterly side of pier 19, and on the westerly side of pier 20, but also on the whole of the outermost ends of both of the piers; and that the mayor, aldermen, and commonalty, or their agents, during that period, collected and received the wharfage accruing on the westerly side of pier No. 19, and on the easterly side of pier No. 20. And the plaintiffs claimed and insisted that by such long and undisturbed receipt and enjoyment of the wharf-age by the proprietors, and the acquiescence of the mayor, aider-men, and commonalty therein, the right of the proprietors to the whole of the wharfage accruing from the outermost ends of the two piers, became established. The bill further alleged, that in or about the month of April, 1839, a resolution was passed by the common council of the city, directing that the pier on the westerly side of Burling slip, known as No. 20, should be extended ninety feet into the East river, under the direction of the street commissioner. That notice of the resolution having been published by the street commissioner, and the proprietors having been required by the notice to signify their assent to the rebuilding and extending the pier, and to contribute towards the expense thereof; a paper was drawn up by or under the direction of the street commissioner, and signed by the proprietors, or the majority of them for themselves and their co-proprietors, and delivered to him, to the effect that they were in favor of the proposed extension, conditioned that none of their rights theretofore enjoyed were to be impaired thereby.

      The hill alleged that the paper was received and approved by him as the agent- of the city, as a sufficient- assent on the part of those proprietors, to the rebuilding and extension of the pier at the joint expense of the city and of the proprietors, and that the condition therein contained, had reference to the wharf-age arising from the whole of the outermost end of the pier, which had theretofore been collected and received by them, and was intended to save and protect such right for the wharfage to accrue from the whole of the outermost end of the pier, when the same should be so extended; and that the condition was so understood by the street commissioner.
    That pier No. 20 was rebuilt and extended accordingly, and that such extension was completed in January, 1840 ; and the proprietors paid two thirds of the expense of such extension. That in May, 1840, a resolution was passed by the common council, directing that pier No. 19 should be extended into the East river, not exceeding eighty-three feet-, under the direction of the street- commissioner, and that he should take the necessary measures to effect the same.
    That- the street commissioner accordingly published the usual notice, requiring the proprietors to signify their assent to such extension, and their willingness to contribute towards the expense thereof, and that a paper was drawn up by the street commissioner, signifying such assent of the proprietors.
    That previous to signing the paper by any of the proprietors, a condition was added thereto by them, or on their behalf, the words following, that is to say :
    " We agree to the above, on the express condition, f none of our rights heretofore enjoyed, are to be impa-ii . thereby.”
    That such condition having been added, the paper was signed by the proprietors, or the majority of them for themselves £ their co-proprietors, and was delivered to the street comn ■ sioner, and received and approved by him as the agent of city; and that the condition therein contained had refere; to the wharfage accruing from the whole of the outermost < of the pier, theretofore collected and received by the proprietors, and was intended to save and protect such right for the wharf age to accrue from tlie whole of the outermost end of the pier, when the same should be so extended; and that the condition was so understood by the street commissioner.
    That pier No. 19 was extended accordingly, and that such extension was completed in October, 1840, and that the proprietors paid two thirds of the expense thereof. The plaintiffs claimed and insisted that when the two piers had been so extended, the right which the proprietors had acquired and enjoyed to the wharfage from the whole of the outermost ends of the piers, before such extension, became attached to the outermost ends of the piers when so extended, and enured to their benefit for the whole of the wharfage to arise therefrom. The hill also stated, that from the time when the extension of the two piers was completed, until May, 1844, the right of the proprietors to the wharfage accruing from the whole of the outermost ends of the piers as so extended, was not obstructed or interfered with by the city ; and that such wharfage was collected and received by the agent of the proprietors ; but that since the 1st of May, 1844, a claim had been set up and asserted on behalf of the city, and by its agents, for one half of the wharfage accruing from the outermost ends of the two piers, and the proprietors had been thereby disturbed in the exercise of their just right to collect and receive the whole of such wharfage. That the city had given a lease of the wharfage of pier 20, to William C. Taylor, and of pier 19, to Edward Conway; who, thereupon, claimed half the wharfage from the ends of those piers. That the annual value of the wharfage from the outermost ends of the two piers was about fifteen hundred dollars.
    The bill then set forth the reasons why the proprietors could not have an adequate remedy at law. It prayed for an injunction against the corporation, Taylor and Conway; for a receiver, and that the complainants and their co-proprietors, might by the decree of the court, be quieted in their right to all the wharfage accruing at the outermost ends of the two piers, and each of them, and in the full possession and enjoyment of such right, and for an account of any wharfage which might have been received by the city or its agents, from the ends of those piers.

      The mayor, &c., of the city put in an answer, in which they denied that the plaintiffs were legally or equitably entitled, or had any just or valid right, to the whole of the wharfage accruing from the outermost ends of the piers No. 19 and 20, and alleged that the right of the plaintiffs to the wharfage accruing at the outermost ends of the piers, if any such existed, was limited to the one half part of the same ; the other half belonging to the corporation. They denied that the right set up in the bill of complaint to the wharfage accruing on South street, between Maiden lane and Burling slip, was derived from grants theretofore made by the corporation of the city for the lots and premises lying between Maiden lane and Burling slip, and fronting on the then exterior line of the city on the East river, as alleged in the bill. They admitted that piers 19 and 20 were built in 1809, running out from South street into the East river, by order of the corporation ; but whether or not the same were so built while the proprietors who then held the rights now represented by the complainants, were in the enjoyment of the whole of the wharfage accruing on South street, between Maiden lane and Burling slip, they were ignorant. They admitted that the then proprietors paid two thirds of the expense of building the piers, and the city paid the other third of such expense.
    The defendants also alleged in their answer, that it has been of old, and is now the usage and custom of the corporation of the city of New York, to let and lease by public auction to the highest bidder, the wharfage, slipage, dock-age, cranage, and other perquisites and emoluments accruing from, and of right payable at, the wharves, piers, and slips, belonging to the corporation, or so much and such parts thereof as the city corporation may deem and consider advisable ; that the wharves, piers, and slips, belonging to the corporation, so to he leased within certain limited and specified bounds, compose what is technically termed a district, and are offered to be leased for the term of one year to the person willing to take the same, and pay the highest annual rent therefor, and furnish satisfactory security for the payment of the amount bid as rent, and are struck off to the highest bidder on these terms. That at the time of such sale being made, the wharves, piers, and slips so belonging to the corporation and proposed to be leased within a certain district, are represented and defined on certain maps prepared for the purpose, which maps represent with truth, precision, and accuracy, the position, extent, and bounds of the several wharves, piers, and slips, at which the corporation are legally entitled to collect the wharfage, perquisites, and other emoluments, and the leases thereupon granted are drawn and executed in conformity with the maps ; that the lessees in the leases named, under and by virtue thereof, acquire the right of the corporation to such wharfage and emoluments accruing at the several wharves, piers, and slips within such district, without any liability to account therefor to the corporation, but to and for the use of the lessees respectively, and that the defendants could not, therefore, state with certainty whether any wharfage was or was not collected at piers, Kos, 19 and 20, by the lessees of the defendants, during the period of thirty years, in the bill mentioned ; but the defendants insisted that the neglect, default, or omission of such their lessees to collect the wharfage and emoluments, to which such lessees were rightfully entitled, could not prejudice the defendants; and the defendants insisted that if the fact were that such lessees did actually neglect, and omit to collect, such wharfage and emoluments which the defendants in no wise admitted, the same could not be deemed or taken to be the acquiescence of the defendants in the right set up by the complainants to the whole of the wharfage, as was charged in the bill.
    That for a great number of years last past, and for more than fifteen years before the commencement of this suit, the two piers, Kos. 19 and 20, and the full and equal moiety or half part of the outermost ends thereof, were regularly designated on the map of the corporation wharves, piers, and slips before mentioned, and the right to the wharfage and emoluments aforesaid, accruing at those piers, and at the one-half part of the outermost ends thereof, was sold and leased in the manner before particularly described; and the defendants insisted that the making of such maps, sales, and leases for the period last mentioned, was a full and perfect answer to, and denial of the allegation in the bill, that by such long and undisturbed receipt and enjoyment of the wharfage by the proprietors, and the acquiescence of the city therein, the right of the proprietors to the whole of the wharfage accruing from the outermost ends of the two piers had become established.
    The defendants then set forth, that one third of the extension of the piers 19 and 20, was paid by them ; and insisted they had and have a legal, valid, and indefeasible right to the entire wharfage accruing on one side of each of those piers adjacent to the slips abutting on the same respectively, and also the one half of the wharfage to arise from the outermost end of the two piers, and each of them.
    The defendants alleged that they had, for a period long prior to the commencement of this suit, exercised acts of ownership over the half part of the outermost ends of the two piers 19 and 20; both before and after the same were extended, and had leased the wdiarfage arising therefrom.
    The defendants Taylor and Conway answered separately, insisting on their rights as lessees. Replications were filed, and proofs taken in the cause.
    A stipulation was entered into by and between the solicitors for the respective parties, by which it was admitted that previous to, and at the time of the building of the piers, Ros. 19 and 20, mentioned in the pleadings, the complainants and their co-proprietors, or those from whom they derived title, were the owners of the lots and premises fronting on South street, between Maiden lane and Burling slip ; that the facts alleged in the bill, in respect to the execution by the proprietors, of the assent to the rebuilding and extension of the piers, on the 21st of March, 1839, were true, excepting therefrom the motives of the persons signing the paper, or their reasons therefor, or the construction put on the same ; and that the plaintiffs represented all persons having or claiming any interest in the wharfage accruing from the ends of the piers, Ros. 19 and 20, adversely to the defendants. By another stipulation, it was admitted by the complainants, that the statement in the answer of the mayor, &c., as to the usage and custom of the corporation of selling or letting wharfage, &e. is true. Also, that at the time of any such sale, the wharves, piers, and slips, belonging to or claimed by the corporation, and proposed to be leased within a certain district, are represented and defined on a general map or maps, of all the wharves, piers, and slips in the city ; the portions thereof which are colored on those maps, being those at which the corporation claims to be entitled to collect the wharfage. It was not admitted, however, that the leases granted upon such sales were drawn or executed in conformity with the maps, there being no reference whatever, in any such lease, to any map ; but it was admitted, that the lessees acquire by virtue of such leases, whatever right the corporation may have to the wharfage accruing at any wharf, pier, or slip, within the district so leased, without any liability to account therefor to the corporation, its officers or servants, but to and for the use of the lessees respectively. It was also admitted, that for more than fifteen years before the commencement of this suit, the two piers, Nos. 19 and 20, and the full equal moiety, or half part of the outermost ends thereof, as they existed before they were extended, respectively, were designated by being colored on the maps above mentioned, and that whatever right the corporation may have had to wharfage accruing at any part of the same piers, was sold and leased in the manner above mentioned.

      12. Emmet, for the plaintiff.

      IT. E. Davies and W. Kent, for the defendants.
   Bv the Cotjet.

Campbell, J.

The bill in this case was filed, for the purpose of determining the rights to wharfage, accruing on the outermost ends of piers 19 and 20 ; the former being on the easterly side of the slip at the foot of Maiden-lane, formerly called Fly Market-slip; and the latter lying on the westerly side of Burling-slip, in the city of New York.

Upon the argument of the cause, the powers and rights of the corporation, in reference to wharfage, and the building of piers, slips, and wharves, derived from colonial charters and acts of the legislature of the state,were discussed and reviewed with signal ability and learning. A reference to those charters, and to the early acts of the legislature, while it becomes necessary in the decision of this case, will serve also to show the enlarged views entertained in former times by the municipal rulers, of the commercial importance and advantages of this city, in the provision which they sought to make for the accommodation of that commerce, which, in our day, is literally whitening every ocean with its canvass, and vexing every sea with its keels.

The charter of Dongan, in 1686, recited, that the citizens and inhabitants had, among other things, erected and built the “bridge into the dock, the wharves and docks, with their appurtenances,” and it ratified and confirmed the title to the corporation ; and in the Montgomery charter, in 1730, the original grants are confirmed and ratified, and new grants made, embracing among other things, “ all the waste, vacant, unpatented, and unappropriated land, lying and being within the said city of Hew York and on Manhattan’s Island aforesaid, extending to low water mark ; together with the right, benefit, arid advantage of all docks, wharves, cranes, and slips, or small docks, within this city, with wharfage, cranage, dockage, and all issues, rents, profits, and advantages arising, or to arise or accrue, by or from all, or any of them.” By this same charter also, was granted the land under water, extending four hundred feet from low water mark, into Hudson’s and East Rivers, beginning at Bestaver’s Killitie on the former, and running round to Corlaers’ Hook on the latter river.

Such were the grants under the charters, when the act of the third of April, 1798, was passed by the legislature, upon the petition of the common council. That petition stated, that the corporation had directed permanent streets, seventy-five feet in width, to be laid on the North or Hudson’s and on the East Rivers; the former, on the Hudson, to be called West-street, and the latter on the East River, to be called South-street; west and south of which streets, no buildings would be permitted to be erected ; that these streets were at and on the extremity of the grants made to individuals by the corporation, and that a part of the plan of the corporation was to extend piers at right angles from those permanent streets into the rivers, at proper distances from each other, to be determined by the corporation with suitable bridges for the accommodation of sea vessels, and eo constructed as to admit the currents at both ebb and flood, in both rivers, to wash away all impurities; that doubts had arisen, whether the corporation could compel individuals to sink and lay out those piers, and whether the corporation, in default of individuals, could do it themselves, at the expense of the city, and receive the wharfage.

The fifth section of the act of 1798, declared “ that it shall and may he lawful for the said mayor, aldermen, and commonalty to direct piers to be sunk and completed at such distances and in such manner as they, in their discretion, shall think proper, in front of the said streets or wharfs, to be so made as aforesaid, and to be connected with the same by bridges, at the expense of the proprietors of the lots lying opposite to the places where such piers shall be directed to be sunk, and by sueb days and times as the said mayor, aldermen, and commonalty may, for that purpose, limit, and appoint,” &c., and in case of default, then the corporation was authorized to sink the piers and receive the wharfage to tlieir own use.

On the 3d April, 1816, the act of 1798 was re-enacted, with additional powers, among which was the power given to the corporation to grant to the owners oflots fronting on the streets forming the permanent outer line, a common interest in the piers to be sunk in front of such streets, in proportion to the breadth of their respective lots, under such restrictions, and within such limits as the mayor, aldermen, &c. should deem just and proper. A large number of grants had previously been made by the corporation to individuals, many of which extended to South-street, the permanent outer street, and which marked the exterior line of the original grants to the corporation under the charters. The piers extending at right angles to this street, would of course he built upon land belonging to the state. In the case of the Corporation of the, City v. Scott, 1 Caines’ Rep. 543, a question arose as to the right of wharfage, accruing from one side of a pier which had been built on the corner of Wall and South streets, under an ordinance of the corporation, founded on the acts of the legislR-ture, before referred to. At the foot of Wall street was a public slip belonging to the corporation ; and in the ordinance, directing and authorizing the building of this pier, the corporation reserved to themselves the wharfage or slipage, which might accrue on the side of such pier adjacent to the slip. The court decided in that case, that the corporation had no right to such ■wharfage, because the land on which the pier was erected was never granted to them ; that no implied grant -was contained in the acts of the legislature, and that the corporation were only to grant to others, as attorneys of the public, in case piers were sunk, and that in the reservation of wharfage to themselves in the ordinance, they had exceeded their powers, and that such reservation was not binding on tbe owner. This case was one of great interest and importance to the city, and it -was argued by four of the most distinguished men who were at the bar in this state, at the commencement of the present century.

The case of the Corporation v. Scott, was decided in February, 1804; and in April, 1806, another act was passed by the legislature, the second section of which is in the following words: — • “That in all cases, where the said mayor, aldermen, and commonalty shall think it for the public good, to enlarge any of the slips in the said city, they shall be at liberty and have full power so to do, and upon paying one third of the expenses of building the necessary piers and bridges, shall be entitled not only to the slipage of that side of the said piers which shall be adjacent to such slips respectively, but also to one half of the wharfage to arise from the outermost end of the said piers.”

It was under the power given in the foregoing section, that the piers 19 and 20 were first sunk in 1809, at the joint expense of the corporation and the owners of the lots on South street, under an ordinance adopted on the petition of those owners. As the power is given to enlarge any of the slips, it was contended, that the sinking of the piers in question was not such enlargement; and it was sought to bring this case within the decision of the supreme court, in the case of the Corporation v. Scott. The wrord slip, is said to be peculiar to this state in its application to structures or places for the accommodation of vessels. The word is used in some of the old colonial acts and in the Montgomery Charter, in the extract hereinbefore given, in which, among other things, the corporation is declared to be the owner of the slips or small docks.

In the case of the Corporation v. Scott, definitions were given as follows, by Mr. Riggs, counsel for the city : “ The piers, (which form the slips,) are under direction of the corporation,” &c. By the court: “ This is no slip, which is an opening between, two pieces of land or wharves.” By the reporter: “A slip is an interval or vacancy between two piers.” We may adopt the definition given by the court as the correct one. But after all, it does not appear to us to be very material, for the act seems to point out the precise manner in which the slips were to be enlarged ; especially when taken in connexion with the acts of 1198 and 1801, and the facts and decision of the case in 1st Caines, so often referred to. Piers 19 and 20 were not slips, any more than the pier built at the foot of Wall street, but they were extensions of the sides of Fly Market and Burling slips.

It seems to be the mode of enlargement contemplated by the statute of 1806, if the corporation should think it for the public interest to enlarge any of the slips, they should have power so to do; and on paying one third the expense of building the necessary piers, bridges, &c. should be entitled to the slipage of that side of the new piers adjacent to such slips. It certainly could not have contemplated an enlargement by widening, but by carrying out piers in the mode provided in the acts of 1798, as had been done on the corner of Wall and South streets. It must be borne in mind, that in 1804, the corporation owned all the public slips, at least so it was conceded by all the counsel engaged in the cause of the Corporation v. Scott; and in building these piers, the corporation did under the law of 1806, what they could not do under the laws of 1798 and 1801, except, that in that case, they reserved wharfage without contributing any portion of the expense; and in this case they paid one third.

That the corporation paid less than the owners of the land from which the piers were extended, may have been owing to a variety of circumstances; such extensions producing an increase of business, may have added to the value of the lots fronting on South street and those slips. The state was the owner of the land on which the piers were built, and gave a power to the corporation for its use, in connexion with the owners of the lots; and the legislature fixed the proportion of expense to be borne, and the proportion of the profits to be enjoyed by each.

We are therefore of opinion, that the building of those piers was legal, and authorized under the act of 1806 and previous acts. It is hardly necessary to add, that the addition of a pier to one side of a slip, in our judgment, must necessarily operate as mi enlargement, even though no corresponding pier is extended from the other side of the same slip. The law of 1806. was re-enacted in 1813 in the revised laws of that year ; and in 1830, a farther extension of those piers took place again, with the consent of the owners, except so far as such consent was qualified by the conditions attached.

It is only under this agreement with the corporation, that the plaintiffs obtain the right to a portion of the wharfage. If these piers were not proper enlargements of the slips, then it would seem that the plaintiffs tail to establish any title in themselves, as the land and wharfage would belong neither to them nor to the corporation, but to the state; and thus failing in title, they cannot of course recover in this suit against the corporation. But as before remarked, we consider the title of the plaintiffs and the corporation as perfect under the acts referred to; and wo shall proceed to the other important question in the case, that is, whether the plaintiffs are entitled to tins entire wharfage derived from the outermost ends of those piers. The plaintiffs claim that they have enjoyed such wharfage from the first sinking of the piers in ; and that in the extension of 183b, they assented on the condition that their exclusive rights to such wharfage derived from the outermost end of the piers should be reserved to them ; in other words, the plaintiffs claim title to the exclusive enjoyment of such wharfage, by prescription, founded on more than thirty years possession prior to 1830, and a reservation of such title in the proceedings in 1839.

The defendants answer, that they and the complainants were tenants in common ; and that, there has been no actual ouster. That the defendants never acquiesced in such exclusive enjoyment by plaintiffs, that if plaintiffs had acquired a title previous to 1839, the new proceedings for enlargement of the slips by a further extension of the piers, restored the right of the corporation to the one-half of such wharfage; and lastly, that there is no sufficient proof to warrant the court in presuming a grant. It will at once be seen, that the presumption of a grant lies at the foundation of the plaintiffs’ title. If there has been no grant, or none can be fairly presumed, they must fail; and it is only on this presumption, that it may become necessary to consider whether, by the proceedings in 1839, the plaintiffs lost the rights which they claim they had previously acquired by prescription. Whether or not a grant will be presumed, is peculiarly the province of a jury to determine; and after a most earnest and careful consideration of this question, looking at the testimony which is before us, and to the nature of the claim, we have come to the decided conviction, that our duty in this case is to send that question to a jury.

It is very evident, that further testimony should be produced, if the same can be procured, in order to effect a satisfactory decision of the cause. The proof of an uninterrupted perception and appropriation of the wharfage from 1809 to 1840 by the plaintiffs, if they succeed in adducing it, will of course affect the question of tenancy in common. It is, we think, hardly to be denied, that an uninterrupted exclusive enjoyment of the wharf-age for so long a period, under claim of title, would be evidence of ouster against a tenant in common. Whether there has been such an exclusive and uninterrupted enjoyment, with the knowledge and acquiescence of the defendants; and whether, upon clear and satisfactory proof of it, a jury will presume a grant, are questions which should be left to their determination.

The question to be submitted to the determination of the jury, will be whether the plaintiffs, and those under whom they claim, had acquired, by prescription, an exclusive right to the whole of the wharfage at the outermost end of the piers, previous to the date of the agreement, in 1839; and all other directions will be reserved.


source: Caselaw Access Project

author: Doer, J.

license: Public Domain

text:
    Ward v. Davis and others.
    An absoluto and final dedication of lands to a public use, can only be made by the owner of an absolute fee.
    Where persons who received a conveyance of a tract of land, formed an association, by articles, dividing their interests into transferable shares, appointed directors to manage, improve, and dispose of their land, and then conveyed the same in fee to trustees, who were to sell and dispose of the same, for the benefit of the association, the deed to them referring to the articles ; it was held, that the whole title, legal and equitable, vested in the trustees, and the directors could not dispose of any portion of the land, by a dedication to the public or otherwise, without the cooperation of the trustees.
    A trust simply to convey lands, without any discretionary power to sell, is not authorized by law. Per Duek, J.
    Where the directors of an association owning lands intended for villas and country houses, adopt a resolution to the effect that a hank and terrace skirting the waters of a bay in front of the lands, shall be perpetually kept open, and never obstructed by buildings of any kind, for which benefit and to keep them in order all the property shall be assessed by a valuation ; on a bill filed by one who had bought and built on the terrace, on the faith of the resolution, it was held, that it was not a dedication of the bank and terrace to the public use or the use of such purchasers. That it was a declaration of future intentions, dependent upon all the proprietors agreeing to a valuation and to be assessed accordingly : and that without proof of a compliance, no proprietor could restrain the association from using the hank for building.
    A dedication of lands to the public use, may be made by acts in pais.

    Nor is it necessary that the user shall have been long enough to establish a right by prescription.
    To constitute such a public use, it is not necessary that the public at large shall be entitled to it ; it suffices if its advantages are meant to be and may be shared by the inhabitants, (or a portion of them,) of a city, town, village, or some other locality.
    A valid dedication may he made by a single act, if positive and unequivocal in its nature ; especially where purchases have been made on the faith it was meant to induce.
    (Before Doer, Mason, and Campbell, J.J.)
    Feb. 7, 8, 11, 12, 13 ;
    April 1, 1850.
    This was a suit commenced in 1845, in the late court of chancery, by Jane E. Ward against Thomas E. Davis, George Griswold, George Griffin, and Francis B. Cutting.
    The bill stated that on the 29th of April, 1836, Davis then owning an extensive tract of land in the town of Castleton, Richmond County, conveyed the same in fee to James B. Murray and others, who executed a mortgage thereon to Davis for a part of the purchase money. That thereupon Murray and others, formed themselves into a voluntary association, called “The New Brighton Association,” for the better management of the lands, and divided their interests into shares which were assignable and transferable. Articles of association were signed and adopted, providing for those shares, and that their affairs should be managed by eleven directors to be chosen annually, who should have power to make rules and regulations for the management, improvement, and disposal of the property.
    On the 30th April, 1836, Murray and others conveyed the whole tract in fee to Louis McLane and two others, Davis being also a party of the third part to the deed. The articles of association were referred to and declared to he a part of the deed, and the same was in. trust, for the grantees to sell and dispose of the lands, pay Davis’s mortgage, and transfer the surplus securities to the directors of the association. Davis was to release portions sold, on receiving one fourth of the price.
    After this, the directors, Davis being one of the board, negotiated and controlled the sales made, although the trustees gave the deeds ; Davis was one of the committee of sales, and no sale was made without his approval. The land was bounded by high water mark on the New York bay and the Kill Yan Kull sound, and along the whole front there was a high and ornamental bank which beautified the neighborhood and rendered it desirable for country residences. The association, to enhance the value of the lands, and more conveniently sell the same, caused them to be laid out into streets and lots, and a map to be made as a permanent representation thereof, upon which the streets and the lots were laid down, as also the terrace next mentioned, and caused the original map to be filed in the county clerk’s office. There had been for many years before, a public road running along the margin of the bank of the sound and bay, in front of all those lands ; and the association laid down on their map an avenue wider than the public road, but generally embracing it, and named it together with the bank itself, on their map, Richmond Terrace. The association, to enhance the value of their property, from the first, resolved and determined that the bank in front of the terrace, to high water mark, should be reserved, and kept open and unencumbered for the common use and benefit of the residents along the terrace, so as to preserve unobstructed the view from the residences, which would front the water; and the resolution was intended to guaranty to every owner or subsecpient purchaser at Hew Brighton, and particularly along the terrace, the right to have the whole bank open and unincumbered, the view therefrom unobstructed, and the beauty thereof unimpaired. In pursuance of that object and determination, such resolution was on the 14th July, 1836, duly and unanimously passed by the board of directors of the association, and entered upon their minutes, in these words: — ■
    “ Resolved that the whole of the bank in front of the Richmond Terrace, and extending down to high water mark, shall be preserved in perpetuity by this association, to be kept open and never obstructed by buildings of any kind; and that for the advantages to be derived from this reservation, the whole of the Hew Brighton property shall be assessed by valuation ; and that for beautifying and keeping the same in order, said property shall also be ratably assessed ; and in case it shall at any time be found necessary to make any dock at the end of ei ther of the avenues or streets, no building shall be erected on the same to exceed fifteen feet in height.”
    That Davis was a director of the association, at the time of the passage of this resolution, present at the passage and voted in its favor, and at that time held and owned the mortgage, so given to him by Murray and others. That this resolution was never repealed by the association ; but the owners of the property at Hew Brighton which was not situated upon the terrace, having made objections to paying money for its improvement, they were not assessed; but that the own era of the property along and upon the terrace, the complainant included, or some of them, were assessed and paid their assessments in pursuance of and in conformity to the resolution.

      That the New Brighton Association, according to the above plan and map of their property, and in pursuance of this resolution, did immediately, or shortly after the formation of the association, lay out the avenue and open the same to the public use, and did also grade the bank in front of the terrace and improve and beautify it; and purchasers of property along the terrace did thereupon erect houses fronting and looking upon the waters, which houses were built and erected with special reference to the terrace and bank, and to the assurances held out, by the resolution, and by the facts after stated, that the same would remain forever as it then was, except as to such improvements as should afterwards be made upon it, for the beautifying it according to the terms of the resolution.
    That the association, through the directors thereof, and also through their committee, who made sales of their real estate, made such sales upon exhibition of the map as a permanent description of the relative position of the lots at New Brighton, with reference to the terrace, and to each other, and did also specially represent to and assure the various persons who bought lots there, situate upon the terrace, that the bank of the terrace should be for ever kept open for their common use and benefit; and by this and their public representations and advertisements, it became a matter of public notoriety, that it was the design and intention of the association so to keep and reserve it, and this fact entered very especially into the value of the lots situated upon the terrace, and much enhanced the price which purchasers were required to pay and did pay for them; and the complainant further charged that it became an implied covenant, at least in the various purchases of property situated upon the terrace, that the bank should be reserved and kept open as above stated. That the association in making sales of land situated upon the Richmond Terrace, withheld from the purchasers thereof a conveyance of the bank of the terrace in front of their respective purchases, not because tbey had not by reason of the premises an express interest therein, but because the association deemed it best for the general interest that the title in law should remain in them as trustees for the several purchasers ; they expressly representing to the same purchasers that according to the resolution of the association above stated, and the design and intention of the association, and according to the plan of New Brighton, as laid down and published upon the map and otherwise, and which they were bound to maintain, the bank was not to be sold, but was to be reserved as common property as above stated, and that by such withholding, they could best, protect the bank from ever being built upon, or in any manner incumbered by any person, winch might happen to be done if the legal title to any part thereof were vested in any purchaser ; and that for the protection of all the purchasers of property along the terrace, the association had resolved to retain the legal title to the bank for tbe common benefit, and that the same should be for ever kept for that purpose, open, unobstructed, and free, for the owners of the adjoining land. That such representations and assurances were freely made to the complainant, and to the various purchasers, and to other persons, by Davis, acting as the agent of the association; and that she and such purchasers, purchased property, situated, upon the terrace, from the association, and Davis, upon the basis of the facts here-inbefore stated; and that Davis, before he conveyed the real estate to the association, made sales of property fronting upon the water, with the same assurances and representations concerning the bank to the purchasers thereof.
    That in 1841, the New Brighton Association was dissolved and broken up, and their real estate sold by virtue of a decree of the court of chancery, upon a bill filed by Richard Alsop, to whom the mortgage so executed by Murray and others to Davis, had been assigned, to foreclose the equity of redemption thereof; and that upon the sale Davis became, and was the purchaser of the premises ; and the same were conveyed to Davis by "William W. Campbell, then one of the masters in chancery, by deed dated September 30, 1843. That Davis, together with George Griswold, George Griffin, and Francis B. Cutting, are now the owners thereof in fee, except such parts thereof as have since been sold by him or them; and that as well Griswold, Griffin and Cutting, as all other purchasers from Davis, made such purchases with full knowledge of the premises. That by this purchase, Davis obtained a legal title to the bank down to high water mark, subject however to the trust before stated, of which he had full notice.
    That on the second day of May, 1836, George A. Ward, purchased from the New Brighton Association, Davis then being a member thereof, a piece of land consisting of several lots situated upon the Richmond Terrace, and that the same was conveyed to him by the trustees.
    That Ward purchased the lands upon the representations and assurances so made as before stated, and under the express covenant that the bank in front of the terrace should be so kept open, free, and unobstructed for the common benefit as above stated. That he was a member of the association at that time, and had a personal knowledge of the resolution of the association and the intentions and designs of the members and directors thereof, and that relying upon those representations and covenants, and with express regard to the same, he built upon bis lots two costly houses, suited to the locality and to the terrace, and such locality and terrace entering essentially into their value.
    On his purchase, Ward gave a mortgage to the trustees on the houses and a part of the lots, which was afterwards foreclosed in chancery, and the lots conveyed to one of the trustees, who on the 12th July, 1841, conveyed one of the houses with its grounds to the complainant, who purchased through her brother, G. A. Ward, from the association, Davis being still a member thereof. That she purchased on the faith of all the representations, assurances, resolution, map, &c., respecting the bank and the terrace, before mentioned; and a sewer which is essential to the house, runs through the bank to the river, and was there when she bought.
    That the four defendants, in violation of the complainant’s rights, and of the trusts before mentioned, and disregarding the representations and assurances so made by the New Brighton Association, and by Davis, have assumed the entire ownership and control over the bank, and have advertised in a newspaper published in the county of Richmond, their intention to apply to the commissioners of the land office of the state of New York, for a grant of land, under water in front of her residence, and in front of the greater portion of the terrace, with a view of erecting docks and buildings thereon, which she insisted would destroy the beauty of the terrace, and greatly diminish the value of her property. That Davis has also been offering, through Lis agent, to grant to her and various other persons, leases of portions of the bank of the terrace; that he has also enclosed a portion thereof for his own use, by a rough and unsightly fence, which greatly mars the beauty of the terrace, and which is placed in front of the residences of some of the owners of property along the terrace; and has for some time threatened to erect buildings on the bank of the terrace, and has already commenced to lay the foundations of a building directly in front of her residence ; and that the erection of any building at that place would render her property almost worthless.
    The bill prayed, that the deed so made under the authority of the association, and with the privity of Davis, to the complainant, might be so reformed as to contain such covenants as to the court should seem just, securing to her her right in the terrace, according to the resolution and representations before stated; or that the defendants might be perpetually enjoined from making any building or erection on the terrace or the bank thereof, or doing any other act or thing in relation to the terrace, contrary to the terms of the resolution, and representations in that behalf before set forth; and for further, or other relief.
    The defendant Davis put in a separate answer. The other defendants answered jointly. The answers denied many of the material allegations, on which the complainant’s equity rested. Replications were filed, and a great mass of evidence was introduced. The disposal of the case made by the court renders it unnecessary to state the answers or the evidence. Some facts will be found stated in the opinion.

      J. Edgar and J. Anthon, for the complainant,
    cited Beatty v. Kurts, 2 Pet. 266 ; City of Cincinnati v. White, 6 Pet. 431; Barclay v. Howell, 6 Pet. 498 ; Kew Orleans v. United States, 10 Pet. 662; Trustees of Watertown, 4 Paige 511; Pearsall v. Post, 20 Wend. Ill; same case in error, 22 Wend. 425 ; Hun

      ter v. Sandy Hill, 6 Hill 411; Hex v. Loyd, 1 Camp. 262; Wyman v. The Mayor of New Norte, (in error,) 11 Wend. 486 ; lewis Street, 2 Wend. 476 ; Livingston v. The Mayor of New Tori), 8 Wend. 85; Underwood v. Stuyvesant, 19 John. 156.

      C. Tracy, and W. G. Noyes, for the defendants;
    that the alleged agreement was void, cited the following authorities ; (1 R. S. 738, § 137, 140 : Id. 750, § 6, 10; 2 IdM34, § 6; 135, § 8; 137, § 6 ; 14 Wend. 38, Kinney v. Waits; 2 Bar. Ch. R. 221, Piir km v. Long Lsland Li. li. Co.; 4 Sand. Ch. R. 72, Wolfe v. Frost.)

    That the declarations of persons belonging to the direction of the association, made when they were not acting as directors or agents, were wholly inadmissible, (2 R. S. 407, § 80; 2 Hill’s R. 451, Bank of the United States v. Davis; 1 Hall’s Sup. Ct. R. 480, Fulton Bank v. Benedict; 3 Barr’s Pa. R. 185, LLaddey v. Alleghany County ; 3 Man. Gr. & Scott, 16, Howies v. Paige; 7 How’s Miss. R. 203, Harper v. Calhoun.)

    That the bill cannot be sustained on the ground of a dedication of property to public use, (2 R. S. 134, § 6; 4 Sand. Oh. R. 72, Wolfe v. Frost; 2 Bar. Ch. R. 221, Pitkin v. Long Lsland Li. li. Go. ; 5 Carr & Payne 460, British Museum v. Firmes ; 4 Paige 510, Trustees of Waiertownv. Covean; 20 Wend. Ill, Pearsalls. Post; 22 Id. 425, S. C.; 19 Id. 309, Parker v. Foot; 5 Bam. & Aclol. 454, Wood v. Veal; 8 Ad. & Ellis, 99, Barradough v. Johnson; Bacon’s Abdg. “Highways,” A.; 3 Kent’s Com. 450; 5 Watts & Searg. 141, Gowen v, Phil. Ex. Co.; 6 Vermont R. 366, State v. Trask; Matthews on Pr. Ev. 329; 4 Bam. & Cress 8, Davis v. M'crrgan ; Strange 904, Hex v. Hudson.)
    That an injury to a mere prospect, is not the subject of remedy, in law or equity, by action or otherwise; (1 Crabbe on Real Property, 384, §446; 9 Coke 58, AldrecTs Case; 1 Mod. 55, Knowles v. Hichardson ; 2 Keb. 611 S. C.; 2 Ves. 452, Atty. Gen. v. Doughty; 1 Mylne & Craig 459, Squire v. Campbell; 2 Roscoe on Real Actions, 354.)
   By the Court.

Doer, J.

Upon the pleadings and proofs in this case, we are asked to restrain the defendants by a perpetual injunction, from erecting any building or obstruction of any kind upon the terrace at New Brighton, designating by the name of terrace, not only the highway or avenue running along the bank, which is tlie northern boundary of the village, but the whole of the bank itself, extending from the avenue to high water mark ; and this relief is asked upon the ground, that long previous to the filing of the bill, and to the acquisition by the defendants of the title under which they claim, the whole terrace, using the term in its widest sense, had been irrevocably dedicated to the use of the public, or, which we regard as equivalent, to the use of the inhabitants of New Brighton.

To enable us to determine whether the plaintiff is entitled to this relief, we have deemed it necessary to examine with care the allegations in the bill, since it is upon their relevancy and truth, that our power to grant, either the specific relief which is sought, or any other, must depend. We must act upon the case as stated in the bill, and established by the proofs; not upon a case which, although it may possibly be sustained by the evidence, the bill has failed to state, and the defendants have not been required to answer. It would be a laborious, and we think quite unnecessary process, to draw out and examine in detail, the various averments and allegations in the bill. It is sufficient to say, that after an attentive consideration and careful analysis of its contents, we have arrived at the conclusion, that the only dedication of the terrace and bank, which the bill sets forth, is a dedication made by the directors of the New Brighton association, with the knowledge and assent of the defendant Davis, as mortgagee; and that the only authentic and legal proof of the proceedings of the directors to which the bill refers, is the resolution adopted by the board on the fourteenth day of July, 1836, which the bill avers was passed for the purpose of carrying into effect the original determination of the associates, that the terrace down to high water mark should be kept open and unin-cumbered for the common use and benefit of the residents of New Brighton. It is upon the basis of this resolution, and upon this basis alone, that a decree in favor of the plaintiff, if such a decree can be made, must be founded; and this is virtually confessed in the final prayer of the bill, which is, that the defendants “ may be perpetually enjoined from making any building or erection on the said terrace or bank thereof, or doing any other act or thing in relation to the said terrace contrary to the terms of the said resolution, and of the representation in this behalf above set forth.”

It is true the representations made by Davis and other directors, which are largely set forth in the bill, and to the proof of which the testimony of the witnesses was mainly directed, are here connected with the terms of the resolution, but it was very distinctly and very properly admitted, by the able counsel for the plaintiff, that these representations furnished of themselves no substantive ground of relief, and could be properly referred to, not as creating or constituting a dedication, blit merely as evidence of an existing fact. For ourselves, we exceedingly doubt, both upon principle and upon the authorities cited upon the argument, whether the evidence given of the representations made by individual directors, in other words, of their declarations and assurances, ought not to be wholly rejected, and we are very clear in the opinion, that if admitted at all, it can only be received so far as it tends, not to contradict or vary, but to confirm, and perhaps explain the proceedings of the board.

The representations made by the directors individually, relate to the intentions and acts of the directors as a body, and of these intentions and acts the resolution of the board is, not only the highest and best, but we apprehend, the only legal proof; at any rate, all the other evidence in the cause bearing upon the fact of dedication, must be regarded as secondary and subordinate, and no construction inconsistent with the terms of the resolution can therefore be given to it. It is not to be denied that other acts and proceedings of the directors as a body, independent of the resolution of the board, are stated and relied on in the bill, but whatever effect might have been given to these acts and proceedings, if standing alone, it is certain that it is in connexion with the resolution that they must now be considered, and in subordination to its terms that they must now be construed, since in reality, it is this consistent interpretation that the bill, as framed, not merely requires, but compels us to adopt. Had the plaintiff intended to rely upon the adoption and filing by the association of the map of Hew Brighton, and the publication of an engraved view, in both of which the terrace and bank are represented as open and unincumbered, as conclusive proof of their absolute and final dedication to public use, and not simply as evidence illustrating the intentions of the directors, as set forth in their resolution, this subsequent resolution, if its terms are inconsistent with such a dedication, would not have been referred to at all, or if referred to, instead of being stated as the very foundation of the relief that is prayed, the right of the directors to adopt it would have been expressly denied.

.As the bill is framed, the plaintiff not merely admits, but insists, that the resolution was duly and legally passed, and has never been repealed; and it is upon the allegation, that its terms have been violated, and in order to prevent their future violation, that- a perpetual injunction is demanded. Such being the frame and prayer of the bill, if we are satisfied that the resolution of the board was in fact adopted, we have no right to disregard it, but are bound to give to the other acts and proceedings of the directors such a construction as may reconcile them with its terms. Nor in this view of the case is it very material to inquire whether the resolution, as originally passed, was after-wards repealed or reconsidered; for if reconsidered, it still remains as evidence that at the time of its passage, the directors claimed the right to make such a disposition of the bank as in their judgment the interests of the association might require. It is, therefore, evidence that there had been no previous dedication inconsistent with the exercise of this right, and its validity as such evidence is necessarily admitted by the bill.

We shall not consider the controverted question of fact, whether the resolution was reconsidered and never finally passed, but for the purposes of this opinion, shall assume that the aver-ments in the bill are sustained by the proofs, and consequently that the resolution was not only duly passed, but was never repealed, and remained in force, at least, during the lifetime of the association.

Upon this hypothesis, the questions to be considered are, First, whether it was competent for the directors to pass such a resolution, or more generally, had they any legal right to make an absolute or conditional dedication of the hank to the use of the inhabitants of New Brighton? and second, supposing the legal right of the directors to be established or admitted, do the terms of the resolution, taken in connexion with other facts in the case, create such a dedication as can entitle the plaintiff to the relief that is sought ?

It is evident that unless we can determine both of these questions in favor of the plaintiff, it will he unnecessary to consider any other of the numerous questions that were raised and elaborately discussed upon the hearing ; and more especially will it be unnecessary to consider whether the defendants, as purchasers of mortgaged premises under a decree of foreclosure and sale, can be affected by any dedication, absolute or conditional, subsequent in date to the execution of the mortgage. If the dedication set forth in the bill were invalid in law, or as a fact is not established by the proof, it is plain that the bill must be dismissed.

The question, whether the directors of the New Brighton association had the power to make a valid dedication of the premises in question, app]ies#ot only to the resolution which they adopted, but to ail their acts, proceedings, and representations set forth in the bill, even upon the supposition that these could be made the subject of distinct consideration, as furnishing of themselves a sufficient ground for relief. If the object could be effected by any act of the directors, a resolution of the board was the most solemn and effectual means of its accomplishment.

It is needless to cite authorities to prove that an absolute and final dedication of lands to a public use, can only be made by the owner of an absolute fee. It is a self evident truth that he only can devote his real estate in perpetuity to the use of the public, who is competent to convey a fee by a perfect and un-incumbered title to an individual. It is certain, however, that neither the directore of the association, nor the shareholders whom they represented, and as whose agents they acted, were the owners of the fee during any period of the existence of the association, unless the deed to the trustees, Louis McLane, and others, which was executed on the same day as the articles of association, and adopts and incorporates them, was wholly inoperative and void. From the time of the execution of this deed, (the validity of which as an express trust to sell lands for the purpose of satisfying a charge thereon, was very faintly questioned by the plaintiff’s counsel, and is not at all doubted by ourselves,) the whole title, legal and equitable, of the New Brighton property, was vested in the trustees, and remained so, as to all portions of it not sold by them, during the continuance of their trust; and during this period the shareholders and directors of the association, not only had no estate or interest whatever in the lands, but no power or authority to dispose of any portion of them, either by a dedication to the public or by a sale to individuals, without the consent and co-operation of the trustees. Whether the trustees themselves, without a violation of their trust, could have disposed of the lands or any portion of them by any other mode than an actual sale, it is needless to enquire, since it is enough to say that without their assent and concurrence, we are satisfied that no such disposition could be made by any other persons.

It seems, therefore, to be a fatal objection to the relief which the plaintiff seeks, that it appears from the éocu men ts to which the bill refers, and which it partly recites, namely, the trust deed, and articles of association, that the fee, subject to the mortgage to the defendant, I)avis, was vested wholly in the trustees, and it is neither averred nor proved, that their sanction or approval was ever given to those proceedings of the directors which are relied on as evidence of a valid and perpetual dedication. It is not even averred or proved that these proceedings were known to the trustees, so that no foundation is laid even for presuming their acquiescence. It may be, that the knowledge and co-operation of Davis as mortgagee are both averred and proved, and that his assent, had the transaction been otherwise valid, would have been binding upon the subsequent assignees of the mortgage, and even upon the purchasers under it; but to render the transaction valid, the assent of the trastees, manifested by some positive act, was just as indispensable, and it is not pretended to have been given.

In order to meet these objections, the learned counsel for the plaintiff was reduced to the necessity of saying that the trust deed effected only a technical alteration of the title, and that the powers of the trustees were purely nominal, lie contended that by force of the articles of association the entire control and management of the property, with an unlimited power of disposition, were entrusted solely to the directors, leaving to the trustees a mere formal duty signing, sealing, and acknowledging such conveyances as the directors might require them to execute. The directors, in the exercise of their discretion, were to sell, the trustees, as a matter of course, to convey; consequently, as a dedication may be made by acts in pais, without a deed, no assent or act of the trustees was necessary to give validity to that which the bill avers, and the evidence (it is said) proves to have been made.

To these views of the learned counsel, which in substance are put forth in the bill itself, we have found it impossible to assent. Had there been no trust deed — had the persons who formed the New Brighton Association continued to be the owners of the fee* the articles of association might very reasonably have been construed as clothing the directors with the full discretionary powers which the counsel found it necessary to attribute to them. But the trust deed cannot be rejected, nor the articles be separately construed. The deed and the articles were executed upon the same day, they are parts of one entire transaction, and the deed contains an express provision, not only that the articles are to be deemed a part thereof, but that for all legal and practical purposes the two instruments are to be considered and construed together. We are bound, therefore, to adopt a construction by which any seeming contradiction in their provisions may be removed and reconciled.

What, then, is the nature of the trust? What are the powers which the deed gives to the trustees ? They are directed “ to sell and dispose of the lands conveyed at such time and times, and in such maimer, either at public or private sale, in such parts or portions, and for such prices as to them, or any two of them, might seem most expedient.” If this discretionary power of sale was valid at all, it rendered it impossible for the directors, collectively or individually, by any act, resolution, or representation, to withdraw from the exercise of the power any portion of the lands which it embraced. The directors could have no right to dedicate lands to the use of the public, which the trustees could take from the public, whenever they might deem it expedient to sell them to individuals. Hence the clauses that have been cited from the trust deed must either be wholly expunged, or the articles of association must be construed to mean that the powers which they give to the directors shall be exercised in subordination to those that the deed gives to the trustees. It is only by this construction that the provisions of the two instruments can be rendered consistent, and we are, therefore, bound to adopt it. ISior is this all. The construction tliat we follow is necessary to render the trust deed effectual at all; it is necessary to preserve its legal existence. A trust to sell lands, and not simply to convey them, is that which the revised statutes alone authorize, and a construction that would rob the trustees of a discretionary power of sale, by rendering the trust passive and nominal, would not merely weaken its efficacy, but destroy its existence. The trust deed is a nullity, if the article of association must be construed as abridging to this extent the powers of the trustees. It is our duty, however, so to construe the deed as to preserve its validity, if without violence to its terms such a construction can be given to it, and the major part of the proprietors of Hew Brighton may do well to remember that upon the validity of the trust deed that of their own titles depends.

For the reasons that have been given, we must adhere to the opinion that we have already expressed. We will not say that the trustees, by joining in a dedication, could have rendered it valid, but we do not at all hesitate to say that without their assent and co-operation the alleged dedication by the directors was illegal and void.

We pass to the second question that we proposed to consider, and upon this we shall not long dwell. Waiving the objections that have been stated, and considering the directors of the association as the representatives and agents of the owners of the fee, with full authority to act upon their behalf, what are the terms and the legal effect of the resolution which they adopted f

The resolution, as set forth in the bill, is in these words: “ Resolved, That the whole of the bank in front of the Richmond Terrace, and extending down to high water mark, shall be reserved in perpetuity by this association, to be kept open and never obstructed by buildings of any kind, and that for the advantages to he derived from this reservation, the whole of the New Brighton property shall be assessed by valuation, and that for beautifying and keeping the same in order, said property shall also be ratably assessed, and in case it shall at any time be found necessary to make any dock at the end of either of the avenues or streets, no building shall be erected upon the same to exceed fifteen feet in height.” When we reflect, with a very slight attention, upon the terms of this resolution, and upon their plain and necessary import, it seems extraordinary that they should ever have been appealed to as evidence of an immediate and final dedication, or, indeed, of any dedication at all. They furnish no such evidence. The resolution is in no sense of the term a dedication. It is merely a conditional declaration of future intentions. A stipulation on the part of the directors that the bank should be kept open and unobstructed upon certain terms and conditions; conditions, the performance of which the association itself had no power to enforce, but which depended for their fulfilment solely upon the will and action of the proprietors of New Brighton, all and each of them. What are these conditions ? They are, First, That the proprietor of each lot embraced in the New Brighton property should consent to its valuation, and should agree to pay, and actually pay such sum as might be assessed upon its value for the advantages he would derive from the reservation of the bank in the manner contemplated in the resolution; and, Second, that each proprietor should also agree to pay from time to time such sums as might be ratably assessed upon Ms lot for beautifying the bank and keeping it in order. That these conditions, and more especially the first and most material, have been, are meant to be, or can now be complied with or enforced, has not been averred in the bill, proved by the evidence, or pretended upon the argument. What then does the bill in seeking relief upon the basis of this resolution require us to do ? It requires us to strike out and wholly expunge the conditions; to read and construe the resolution, as if they had never been inserted; and to hold that the resolution, in this absolute form, is binding upon the defendants, and by a perpetual injunction to restrain them from its violation. To such a request we cannot listen. It is sufficient in a comb of equity to have explained its nature. The explanation is its denial. The directors of the association offered, in effect, to sell the bank to the proprietors of lots for a valuable consideration. The plaintiff asks that the bank may be conveyed without any consideration at all.

The learned counsel for the plaintiff, pressed by the difficulties that have been stated, abandoned in his reply the case as set forth in the bill, and which in his opening he had endeavored to sustain. Instead of demanding relief upon the basis and according to the terms of the resolution of the directors, lie denounced it as an exercise of an usurped authority; an illegal attempt of the board to prescribe conditions which the association had no right to impose. He insisted, that long before the resolution was passed, a perfect and absolute dedication of the bank to the use of the inhabitants of Hew Brighton, and for the purposes set forth in the bill, had been made; a dedication which the association and its directors had no power to revoke or modify. He argued, both upon the evidence and the law, that this valid and irrevocable dedication had been made by Davis himself, when absolute owner of the fee, and before any title whatever had been passed from him to the Hew Brighton association. It was during this period, he contended, and under the authority of Davis himself, that the Hew Brighton property had been surveyed, formed into the plat of a town or village, and as such, laid out and divided into lots, streets, avenues, and squares,; and that it was under the order and by the direction of Davis, that a map exhibiting the future village in all its meditated perfection, was prepared and finished ; the very map which was produced in evidence, and upon which the terrace and bank are represented as open and unobstructed. And in proof of these facts he referred to the conveyance from Davis to the associates, their mortgage to him, and their deed to the trustees, in each of which instruments the premises conveyed are described by an express and mínate reference to the map as then existing. Upon the force and legal effect of the evidence upon which the counsel relied, we shall express no opinion. It may be, that the circumstances upon which he dwelt bear a close resemblance and analogy to those which in several of the cases that he cited were held to be conclusive; but we are satisfied that, from these circumstances, we have no right at present to draw a judicial conclusion.

We are satisfied, that upon the pleadings and proofs in this case, we have no right to decide, and consequently must refuse to consider, the question whether Davis, as owner of the fee, made such a dedication of the terrace and bank as can entitle the plaintiff to the relief that she asks. Ho such case is made, no such question raised, by the bill. It contains no such allegation. On the contrary, the assertion that a valid and prior dedication was made by Davis, is wholly inconsistent with the allegations that the bill does contain, and with the grounds, the only grounds, upon which it demands relief. The bill very plainly admita that the Hew Brighton associates, when they acquired their title, had an absolute right, to make such a disposition of the bank as they might deem most conducive to their own interests, and it is upon their subsequent acts and proceedings in the exercise of this admitted right that the prayer for relief ⅛ exclusively founded. We must take the bill as it is. In this stage of the cause we have no power to amend it; we cannot therefore make a decree, that so far from corresponding with the allegations of the hill must directly contradict them. Such a decree would be a violent and unprecedented departure from established rules. The maxim is trite, but we know not that it has ever been violated, that in a court of equity relief can only be granted secundum tam allegata tarn ggrohaia. Compelled to act upon the bill, as it stands, it is unnecessary to re-state our reasons for holding that its material allegations are not sustained by law or by the evidence. It must therefore be dismissed with costs.

Although we are constrained to dismiss the bill, we ought not to conclude this opinion without saying, that upon nearly all the questions of law that were so ably and learnedly discussed upon the hearing, we entirely agree with the counsel for the plaintiff, and yield our full assent to the conclusions which be pressed upon our adoption. We do not at all doubt, however singular the anomaly which is thus created in the law, that a dedication of lands to a public use, in effect, extinguishing for ever the title of the owner, may be made by an act in pais / that the doctrine of prescription is not applicable to the case, so as to require evidence of a long user in order to establish the right, but that a valid dedication may be made by a single act, if positive and unequivocal in its nature, and especially where purchases have been made upon the faith that the act was meant to induce ; that to constitute a public use, it is not necessary that the public at large, that is all persons, without distinction, shall be able, or be entitled, to share in its advantages, but it is sufficient that its advantages are meant to he shared and may be shared by the inhabitants, or by a portion of the inhabitants, of a city, town, or village, or other locality; and finally, that the terrace and bank at Hew Brighton, in consideration of the benefits the inhabitants of the village, and particularly those residing upon the terrace, would be certain to derive from their being kept open, were just as properly a subject of dedication as a street, avenue, or square,

A diligent examination and study of the numerous cases bearing upon these points that were cited upon the argument, has enabled and entitles us to say that, in our judgment, they fully sustain, in terms, or by a necessary deduction, all the positions to which our assent has now been expressed.

We shall add a few observations, perhaps extra-judicial, but we think not irrelevant. It is impossible to read the testimony of the numerous witnesses who have been examined in this case, without being satisfied that many, and probably a large majority of those who have purchased lots and built houses upon the terrace at Hew Brighton, have done so, in the full expectation and belief, that the bank in front of their dwellings was to be kept open and unobstructed, in the manner and for the purposes set forth in the bill, and implied in the resolution of the directors; nor can it he doubted that the prevalence of this belief enabled the Hew Brighton associates to demand, and induced the purchasers to pay, a much larger price for their lots than would otherwise have been exacted, or could have been obtained. It may be true that this belief of the purchasers was mainly founded upon assurances to which in prudence they ought not to have trusted ; but looking at the circumstances as they then existed, it is not a matter of surprise or blame that these assurances were given, nor can the expectation to which they led be deemed at all unreasonable. There is, therefore, an equity in the case of these proprietors, including the plaintiff, that all must feel; and this equity, although it may not legally reach the defendants and perhaps can never be judicially enforced, we trust they will not fail to acknowledge.

We indulge a confident hope that the claims of innocent and deceived purchasers will be fairly considered, and, in the result, their reasonable expectations be substantially fulfilled.


author: Oakley, Ch. J.

text:
    Furniss v. Sherwood.
    The provision of the revised statutes, making invalid the assignment and transfer of the effects of monied corporations, in case of their insolvency, with the intent of giving a preference to a particular creditor, is applicable to mutual insurance companies.
    A transfer of a note made by an insolvent monied corporation, further to secure a loan, made previous to its insolvency on an understanding or verbal agreement with its president, that the lender should at all times be kept adequately secured by col-laterals, is in violation of the statute, and cannot be sustained.
    Where pending a suit on a note so transferred, the lender made an arrangement with the receiver of the company, by which he became legally entitled to the note ; it was held that it could not avail him to maintain the action.
    (Before Oakley, Ch. J., and Paine, J.)
    March 8 ;
    April 13, 1850.
    This was an action of assumpsit, to recover the amount of a promissory note for $1500, made by the defendant, dated March 14th, 1846, and payable in seven months after date, to the order of The Croton Insurance Company, and endorsed by the president of the company to the plaintiff. It was given in renewal of a previous subscription note to the company, made in 1845.
    The facts appearing on the trial were as follows: On the 18th of February, 1846, the finance committee of the company adopted a resolution, empowering the president to take such steps as he might deem necessary to raise from the assets belonging to the company, the money which might be needed from time to time, which resolution was reported to the trustees, on the 27⅛ of February. That, subsequently, in the month of March, the president, in pursuance of the resolution, applied to the plaintiff for a loan to the company of $6,000, and an arrangement was made, by which the plaintiff lent to it that sum, in his notes, which were discounted for its benefit at a bank. The loan was made upon the collateral security of notes, which were assets of the company. On the maturity of the loan, June 24, 1846, the company’s note was renewed for $5,500, and an arrangement was made by the president with the plaintiff, as a condition of the renewal, that the plaintiff should be furnished with additional security, in accordance with which arrangement, the note in suit was transferred to him, on the 16th day of July, 1846. There was an agreement between the plaintiff and the president, when the loan was made, to the effect, that he should be kept secured for the loan by the transfer of collaterals from time to time. The company became insolvent on the 14th day of May, 1846; and the fact was known to the plaintiff before July.
    The counsel for the defendant moved for a non-suit, on the ground that Mr. Stacey, the president of the company, had no authority to indorse the note in suit, and that the transfer of the note was void, having been made when the company was insolvent. The court denied the motion, reserving the latter question.
    It was proved, that upon the settlement of a suit, commenced by the receiver of the company against the plaintiff, the receiver relinquished to him all claim for or in respect of the note of the defendant upon which this suit was brought.
    A verdict was taken for the plaintiff, for the amount of the note and interest, subject to the opinion of the court.

      M. S. Biéwett, for the plaintiff.
    ./. Ar. Taylor, for the defendant.
   By the Coxtet.

Oakley, Ch. J.

The question has been raised whether the provisions of the revised statutes, relative to monied corporations, are applicable to mutual insurance companies. It is very evident that some of those provisions do not apply, because from their nature, they can only have reference to banks. But there are others which are applicable; and we do not see how we can except these insurance companies from the operation of a statute, which expressly embraces them, and some of whose provisions are applicable in their very nature to such companies.

The revised statutes in the title referred to, provide that in case of the insolvency of a monied corporation, no assignment, conveyance, or transfer of any of its effects, made when insolvent, or in contemplation of insolvency, with the intent of giving preference to any particular creditor or creditors of the corporation, shall be valid in law, and every person receiving, by means of such conveyance, assignment, &c. any of the effects of the company, shall be bound to account therefor to its creditors, stockholders, or their trustees, as the case shall require. The statute further provides, that every director who shall violate, or be concerned in violating this provision, shall be deemed guilty of a misdemeanor.

The object and spirit of this act is, undoubtedly, to secure an equal distribution of the effects of a monied corporation, among the creditors, in case of its insolvency. It is obvious, therefore, that in order to maintain the validity of the transfer of the note in suit to the plaintiff, his case must in some way be excepted from the force of the statute.

He relies upon a general understanding, made at the time of the loan to the company, with the president through whom the loan was effected, that he should be furnished at all times with adequate collateral security; and that, in accordance with this arrangement, the note in suit was subsequently transferred to him. But If such an understanding has an operative effect, it might extend to and cover all the assets of the company. We do not see how such an understanding, not carried into effect before the actual insolvency of the company, can overrule the statute. Hor can the arrangement with the receiver, which took place subsequent to the commencement of the suit, enable the plaintiff to maintain this action. He must sue again, and the defendant can then -present his claim for an offset, and have it determined.

Judgment for the defendant.