author: Mason, J.

text:
    Gabriel Furman, Executor, &c., and others v. The Mayor, Aldermen, and Commonalty of the City of New York.
    By the common law the King is seized in fee of all the lands under the navigable waters óf his realm, and is entitled to grant and convey them. He has the right of soil in all rivers which have the flux and reflux of the sea.
    This right is entirely distinct from and subject to the light of the public to pass over the waters with ships; and the jus privatum does not prejudice the jus publicum wherewith public rivers or arms of the sea are affected for public use.
    Itfollows, from the nature of the property of the crown in the soil under water, that the riparian owners are not entitled, as a matter of right, to the soil under water in front of their upland. There cannot be two owners to the same piece of land.
    The charter of the City of New York gives to the Corporation the fee of the land, under water, within certain limits to the extent of 400 feet beyond low water mark.
    An Act, of the Legislature, passed April 3, 1798, authorized the corporation to lay out, according to such plan as they might agree upon, regular streets and wharves of the width of seventy feet in front of those parts of the city which adjoined the East and Hudson rivers, and of such extent along those rivers respectively, as they might think proper; and provided that such streets or wharves should be built and completed according to the said plan, by and at the expense of the proprietors of land adjoining, and nearest, and opposite to the said streets or wharves, in proportion to the breadth of their several lots, by certain days to be fixed for that purpose by the Mayor, &c.; and that the respective proprietors of such of the said lots as might not be adjoining to the said streets or wharves, should also fill up and level, at their own expense, according to such plan and by the said days respectively, the spaces lying between their said several lots and the said streets and wharves, and should, upon so filling up and levelling the same, be respectively entitled to become the owners of the said intermediate spaces of ground in fee simple.

      Held, that the proprietors referred to are the grantees of the corporation, or their assigns, who had received grants to the full extent of the 400 feet, owned by the corporation, and that the intermediate spaces were the spaces which in consequence of the irregularity of the shore sometimes intervened between the extremity of the corporation grants and the regular street in front of the river which the Act authorized to be built. These intervening spaces belonged to the State, and were granted by the State to the adjoining proprietors on the conditions expressed in the Act.
    The Act of the Legislature referred to was passed on the petition of the Corporation, and contained a preamble referring to, and, in part, reciting the petition.

      Held, that the terms of the Act being doubtful, both the petition and the preamble could be resorted to, to ascertain the intention of the Legislature.
    (Before Dunn, Mason, and Campbell, J.J.)
    (Dec. 9, 10, 11, 1850.
    May 31, 1851.)
    This was a bill in equity, filed by the acting Executor and Trustee, under the will of Gabriel Furman deceased, and also by the heirs at law of said Furman, to restrain the Mayor, Aldermen, and Commonalty of New York from making or delivering to any person or persons a grant of the land under water in the East River, bounded easterly by Corlaers street, and southerly by South street, and situated immediately in front of the land granted to the said Gabriel Furman, as hereinafter stated.
    The facts, so far as they are necessary to enable the reader to understand the questions decided, are briefly these :
    Gabriel Furman, in the year 1785, purchased from one John Quackenbos a piece of land, known on a map of the estate of John Delancey by the lot No. 20, situate at Corlaers Hook, and bounded southerly and easterly on the East River at high water mark. Quackenbos had acquired title to the lot by a conveyance executed to him in 1784 by the Commissioners of Forfeitures, appointed in pursuance of an act of the Legislature of' the State, for the speedy sale of confiscated and forfeited estates within the State.
    The Montgomery Charter of the city of New York, dated in 1*730, gave to the Corporation all the lands on the island between high and low water mark, and also all the lands under water extending from the north side of Corlaers Hook to White Hall, four hundred feet into the East River beyond low water markj with power to make wharves and build piers thereon ; but with a proviso, that of the wharves to be run out there should be left towards the East River forty feet broad, as well, for the greater convenience of trade, as at any time thereafter for the Government to plant batteries thereon, in case of necessity.
    On the 24th of July, 1804, the Corporation executed to Mr. Furman a grant of land under water in front of his lot No. 20, extending from high water mark one hundred and thirty feet into the East River, to a certain new street intended to be formed, and to be called, Corlaers street, and a certain other street made and intended to be continued into the said river, called Front street.
    The grantee was bound by covenant in the grant to make this new street, called Front street, in front of his premises, and also an intermediate street, called Water street, whenever he should be required so to do by the Corporation ; and he was also entitled to all the wharfage and cranage accruing from those parts of Front and Corlaers streets, which were opposite to the premises thereby granted.
    The Corporation had not required these streets to be filled up and made at the time of the passage of the resolutions next hereinafter mentioned.
    On the 20th of October, 1845, the Corporation passed certain resolutions as follows :
    Resolved, That the Comptroller, with the assent of the Commissioners of the Sinking Fund, offer to the legal representative of G. Furman, a grant of the land under water in the East River, bounded easterly by Corlaers street and southerly by South street, and situated immediately in front of the land granted to said Furman under date of the 20th July, 1804, at a valuation to be determined in accordance with the provisions of an ordinance passed by the Common Council, and approved by the Mayor, February 22d, 1844, the said grant to contain the usual covenants.. And in case the legal representatives of said Furman shall refuse or neglect to accept of such grant as aforesaid, within fifteen days after they shall have received the offer, the Comptroller is authorized and directed to make such grant upon the same terms to such other person or persons as shall be willing to take the same.

      Resolved, That after the grant of said land under water shall have been made, the Comptroller, in the name of the Mayor, Aldermen, and Commonalty of the City of New York, give notice to the proprietors or their legal representatives, of the several grants of land under water in the East river fronting-on South street, between Walnut street and Corlaers street, to build in front of their several grants between the easterly pier of Walnut street and the easterly side of Corlaers street,, a sufficient and firm wharf or street, of the width of seventy feet, called South street, and that he also give notice as aforesaid to the proprietors or their legal representatives, of the1 grants of land under water in the East river, fronting on Corlaers street, between South and Water streets, to build in front of their said grants a sufficient and firm wharf or street, of the-width of fifty feet, called Corlaers street. The said notice-shall require the proprietors of the said grants respectively, or their legal representatives, to build, erect, and finish the said streets or wharves, at their own proper costs and charges, within three months from the service of the said notices. And the said notices shall also require the said proprietors respectively, or their legal representatives, to till in with good and wholesome earth, or other solid material, within the lines of their respective grants, the space lying between the said streets or wharves so to be built, and the replanned or regulated lots along the shore of the East river aforesaid, within twelve months from the service of the same.
    The plaintiffs insisted that at the time of granting the charter the King had no right or title to the land under water in front of the grant to Furman before mentioned, except in trust for the public, and that he could not make any valid grant of the said lands in derogation of the rights of the riparian owners of the adjacent lands on the shores of the East River.
    But that admitting the King to have had a title to such lands, in fee simple, and that the corporation by the Montgomery charter became vested with all the title of the King, yet that such title to the land became divested, by virtue and force of an Act of the Legislature, entitled an Act concerning Streets, Wharfs, and Piers, and the Almshouse and Bridewell in the City of New York, passed April 3,1798, which was afterwards incorporated into the Act to reduce several laws relating particularly to the City of New York, into one act, passed April 9,1803 (the most important sections of which original act form the 22Óth, 221st and 222d sections of that act. 2 Rev. Laws, p. 432).
    The act of 1798 above referred to, was passed upon the petition of the Corporation, and the petition and the preamble to that act are so important in ascertaining the true meaning of the act, that they are inserted at length, together with those sections of the act which bear upon the present case. ,
    The Petition of the Mayor, Aldermen, and Commonalty of the City of New York, in Common Council convened,
    Respectfully showeth, that as well for the ornament and improvement of the city, as for the encouragement of the trade and commerce of the state, and the safety of the shipping at the wharves of this city, your petitioners have lately directed a permanent street of seventy feet wide to be laid out and completed at and on the extremity of their grants already made and hereafter to be made to individuals, on the East river, called South street, and on the North or Hudson’s river, called West street, south and west of which streets no buildings of any description are to be permitted to be erected, so that vessels ’lying at the wharves may be secured from fires.
    That by reason of the curving and otherwise irregular state of the shore at low water mark in the East and North rivers, at the time of the making of the grants by the predecessors of your petitioners, a general map of which, if ever made, cannot now be found, the grants heretofore made are deemed to extend to unequal distances into both rivers, which occasions difficulties in making the permanent streets aforesaid regular ; and that in many instances, although your petitioners are willing gratuitously to give the soil under the water, on which those streets of seventy feet wide are to be made, yet doubts are entertained whether your petitioners can compel any of the proprietors of the lots fronting thereon, and who may be unwilling, to make those streets for public use, in any given reasonable time to be appointed by the Common Council.
    And your petitioners further show, that part of their plan aforesaid was to" extend piers at right angles from the said 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 so constructed as to admit the currents at both ebb and flood, in both rivers, to wash away all dirt and filth from the wharves, and thereby render the health of the inhabitants of the city more safe and secure ; but doubts have also arisen whether your petitioners can compel the individual proprietors of the wharves to sink and lay out those piers ; or if they shall refuse, whether your petitioners will be authorized to sink and build those piers at the expense of the city, and receive the wharfage, without incurring a breach of the conditions and covenants contained in their grants to individuals. And forasmuch as some adequate remedy is essentially necessary in the premises, as well to secure the health of the citizens as to effect ornament and regularity in the fronts of the city, and convenience and safety to the trade and commerce thereof,
    Your petitioners pray that the. honorable the Legislature will confer such power and authority to your petitioners as shall be proper to remove the difficulties and doubts above stated, or to make such other provision in the premises as to the Legislature shall seem meet.
    AN ACT

      Concerning certain Streets, Wharfs, and Piers, and the Alms-house and Bridewell in the City of JYew York.

    Passed April 3d, 1798.
    Whebeas it would conduce to the improvement and health of the said city, as well ps to the safety of such ships or vessels as may be employed in the trade and commerce thereof, that regular streets or wharfs of the width of seventy feet, should be laid out and completed in front of those parts of the said city, which adjoin to the East river or Sound, or to the North or Hudson’s river, and that piers should he extended from the said streets, into the said rivers respectively, at convenient distances from each other, with suitable bridges, for the accommodation of sea vessels, and upon such a construction as to admit the current of the said rivers at both ebb and flood, to wash away all dirt and impurities. And whereas the said mayor, aldermen, and commonalty, by petition to the legislature, under their common seal, have represented, that they are disposed to make the said improvements, but that from the curving and irregularities of the shores of the said rivers in their original state, from the grants made by their predecessors, being deemed to extend to unequal distances, into the said rivers, and from other causes, difficulties have arisen as to the execution of a proper plan, and doubts have been entertained whether they could compel the proprietors of lots fronting on the said rivers, to .make those streets within a reasonable period, or to sink and build those piers ; and whether the said petitioners could without a breach of the conditions and covenants contained in their grants to individuals, upon the refusal or neglect of such proprietors, sink, build, and make those piers, streets, and wharfs at their own expense, and receive wharfage as a compensation for the same, which doubts and difficulties- can only be removed by the aid of the legislature. And whereas defects have been discovered in the provisions, for assessing and. raising money in the said city, under the act entitled “ An act for regulating the buildings, streets, wharfs, and slips in the city of New York Therefore,

      Be it enacted by the People of the State of JYew York, represented in Senate and, Assembly, That it shall and may be lawful for the mayor, aldermen, and commonalty of the city of New York to lay out, according to such plan as they shall or may agree upon or determine, such streets or wharfs, as hereinbefore are mentioned, in front of those parts of the said city which adjoin to the said rivers, and of such extent along those rivers respectively, as they may think proper ; and that as the buildings of the said city shall be further extended along the said rivers, it shall and may be lawful for the said mayor, aldermen, and commonalty, from time to time, to lengthen and extend the said streets or wharfs.

      And be it further enacted, That the said streets or wharfs shall be made and completed, according to the said'plan, by and at the expense of the proprietors of land adjoining, or nearest and opposite to the said streets or wharfs, in proportion to the breadth of their several lots, by certain days, to be for that purpose appointed by the said mayor, aldermen, and commonalty, and that the respective proprietors of such of the said lots, as may not be adjoining to the said streets or wharfs, shall also fill up and level at their own expense, according to such plan, and by the said days respectively, the spaces lying between their said several lots, and the said streets and wharfs, and shall, upon so filling up and levelling the same, be respectively entitled to, and become the owners of the said intermediate spaces of ground, in fee simple.

      And be it further enacted, That if any of the said proprietors shall neglect or refuse to fill up and level such intermediate spaces of ground, by the said days, to be so as aforesaid appointed, it shall and may be lawful for the said mayor, aider-men,'and commonalty, to cause the same to be done for, and on behalf of the said proprietors, and to charge them with the expense; and if the said proprietors respectively shall not repay the said expense, with lawful interest from the times of the expenditure, within one year and six months after demand for that purpose, made by the said mayor, aldermen, and commonalty, or any person on their behalf, it shall and may be lawful for the said mayor, aldermen, and commonalty, to levy the same, together with the interest thereof, and all reasonable costs and expenses attending such proceeding, by distress and sale of the goods and chattels of such proprietors, or the occupants of the said lots respectively, or to recover the same from the said proprietors respectively, by action of debt in the Supreme Court of this State, wherein it shall be sufficient to allege generally, that the defendants respectively, are indebted to the said mayor, aldermen, and commonalty, in a certain sum, for money expended on their account, by virtue of this act, and in such action any less sum than the one declared for, may be recovered, and full costs shall be taxed for the plaintiffs, if judgment shall be given in their favor. »

      H. Nicoll and George Wood, for the complainants, made and argued the following points :—
    I. The complainants, as heirs at law of Gabriel Furman, deceased, are the proprietors of a lot at Corlaers Hook, on the East River, nearest and opposite to portions of South and Corlaers streets, as directed to be lengthened and extended by the defendants, by virtue of their resolutions passed October 25th, 1845, and in the Bill set forth.
    As such proprietors, the said complainants, under the provisions of the Act of April 3d, 1798, entitled “ An Act concerning certain streets and wharves, &c., in New York,” and of the several Acts amendatory of the same, are compelled to complete such streets in proportion to the breadth of their said lot, and to fill in the space lying between the same and such streets, by-certain days to be appointed by the defendants; upon doing which, said space so to be filled in will belong to the said complainants in fee simple. Laws of 1798, chap. 80; 1813, vol. 2, page 431; 1820, page 131.
    II. The provisions of the said Act of 1798 (and which were re-enacted in the revisions of 1807 and 1813) were deemed necessary, the better to enable the defendants to carry out their plan of improving the City of New York. They imposed onerous duties upon the proprietors of lots on the shore, which could only be compensated by giving to them in fee simple the land which they were ordered to fill in.
    III. The said Act of 1798 was passed on the express application of the defendants, and even if such were not the case, the fact of its passage authorizes the presumption that its provisions were required for the better regulation of the city. The subject-matter of the grant being entirely within the power of the Legislature, as a matter of legislation merely, all former provisions on the subject, whether in the charter or in prior legislative acts, were suspended by this last expression of the sovereign will, and all the powers of the Corporation in regard to the lengthening and extending streets, must be found in this or in subsequent Acts of the Legislature. Mayor, &c., of New York v. Ordrenau, 12 Johns. R. p. 123.
    IV. The defendants have uniformly acted under these laws in the lengthening and extending streets along the East river ; and in availing themselves of their beneficial provisions, they are not at liberty to say that the provisions of the same Acts in favor of the riparian proprietors are of no avail. On the contrary the power itself can only be exercised upon condition of compensation to such riparian owners—that is to say, by giving them in fee simple the land they are required to fill in.
    V. The said act of 1798, is in no respect a violation of any of the chartered rights or property of the defendants, because—
    1. Said Act is of no effect until acted upon by the defendants, who are only subjected to its provisions if they desire to avail themselves of the power conferred upon them in relation to the lengthening and extending of streets.
    2. Said Act was passed on the application of the defendants, and with their assent, as is in substance recited in the preamble of the Act, and is impliedly admitted in the answer of the defendants.
    VI. The provisions of the Montgomery Charter, granting to the defendants the title in fee to the land under water adjoining the shore of the East river, along the entire front of the city as it then existed, ought not to be construed so as to exclude the riparian owner from all the rights and immunities which he then was entitled to ; that is to say, the right of ingress and egress to and from his land upon the water which bounded the same, and to the free and unobstructed use of his water front.
    1. The king as owner of the soil under the water had no power to make a grant which would operate as an invasion of the rights of private property, and all grants made by him are to be construed most strongly against the grantee, and in such manner as not to effect injury to a private individual. Hale de Jure Maris, p. 11; Hale de Port. Maris; p. 84 ; Blundell v. Catterall, 5 Bar. & Ald. 328; Atty. Gen. v. Parmeter, 10 Price, 378; Same case in House of Lords, 10 Price, 412; Martin v. Waddell, 16 Peters, 369; Angell on Tide Waters (2d edit.) p. 20, et seq., 171.
    2. The recitals in the Montgomery Charter show that the rights and immunities therein conferred upon the defendants, were given and granted_/or public purposes, for the advancement and welfare of the city, and to give encouragement to its commerce. The nature of the ownership in the lands under water as now claimed by the defendants, is not only inconsistent with such benign purposes, but destructive of them, by putting it in the power of the grantees of the Corporation to obstruct the rights of the public and the riparian owner, by the private enjoyment of the land when filled in.
    3. The defendants have until very recently uniformly given to the riparian owner the grant of the land under water in front of his lot, on the shore, at a moderate quit-rent, and in doing so have virtually admitted their want of power to make such grant to another person, and have thereby prevented the question of the validity of the Montgomery Charter in this respect from being raised.
    VII. The conceded fact,' that the complainant's ancestor, Gabriel Furman, received from the defendant a grant of land under water adjoining the lot on the shore, is not an admission of the defendant's title to any other lands under water beyond said grant, nor can the same be urged as an estoppel in this suit, to prevent the complainants from denying the defendant’s right to make a grant of land under water to a stranger. Dezell v. Odell, 3 Hill, 216.
    VIII. In and by the said grant of land so. made by the defendants to Furman, it is covenanted that the said Furman shall, when required to do so by the defendants, make and keep up at his own expense the wharves and streets on the exterior line of the said grant, and that he shall be entitled to the wharf-age accruing from the same without any molestation or hindrance from the defendants. The defendants, by reason of this covenant, are debarred from making a grant, beyond the one given to Furman, to another individual for their own private gain.
    IX. The said covenant by which Gabriel Furman and his representatives were entitled to receive all wharfage, &c., accruing from the wharves and streets on the several fronts of the premises granted to him, was property of which neither he nor they could be divested for public purposes, except upon receiving an adequate compensation for its destruction.
    X. The proceedings of the corporation of New York, in regard to the making of streets and wharves under the several Acts of the Legislature hereinbefore referred to, are taken by them as a municipal and public body, and in the exercise of special legislative powers conferred upon them for public purposes. The effect of such proceedings, if taken in the present case, is to entirely destroy the said covenant for wharfage ; and the said Acts of the Legislature having made no provision for compensation in a case like this, it is contended that they are in that respect void, as being in violation of the Constitution of this State.

      H. E. Davies and W. Kent for the defendants, made and argued the following points :—
    First.—The corporation of the city of New York, at -and before the period of the grant to Gabriel Furman, on the 24th of July, 1804, were proprietors in fee simple of the land under water, contiguous to the piece of land conveyed to Gabriel Fur-man, by John Quacltenboss, on the 31st of December, 1785. The land of the Corporation extended from high water mark, on the land of said Furman, and also from low water mark, 400 feet into the East river, and the corporation had the right to “ fill, make up, wharf, and lay out,” all and every part thereof. This land, and these rights, the corporation had power to grant to any person or persons whatever.
    I. The corporation had the capacity to take, hold, and dispose of real estate.—Dongan’s Charter, § 6, p. 10 ; Kent’s Notes, note F. p. 113 ; Same Charter, § 12, p. 21 ; Note M. p. 115 ; Montgomery’s Charter, § 1, p. 36, Note T. p. 120 ; Ib. § 36, p. 83, Note BBB, p. 172.
    II. All the waste, vacant, and unpatented lands, within the island of New York, extending to low water mark, were granted to the corporation.—Dongan’s Charter, § 3, p. 8. Note C. pp. 110, 111.
    This grant confirmed by Montgomery’s Charter. Sec. 35, pp. 84, 85. Notes AAA, p. 172. CCC, p. 173.
    There was also granted to the corporation, the soil under water, 400 feet beyond low water mark, from the Fort, extending along the East river to the north side of Corlaers Hook, with full power to fill, make up, wharf, and lay out all and every part thereof.—Montgomery’s Charter, § 28, pp. 86, 87. Note DDD, pp. 174,175,176.
    III. These charters were legally and properly granted, and have always been, and now are, good and effectual.
    1. The King of Great Britain, by the common law, had the right of property in the soil under water, of arms of the sea and navigable rivers.—Case of the Fishery of the River Banne, Davies’ Reports, 149 ; Rogers v. Jones, 1 Wend, 237 ; Whitney v. The Mayor, &c. Opinion of Judge Strong, in Court of Appeals.
    2. The King had the right to grant and convey by his charter, the soil of which he was thus proprietor.—Shults on Aquatic Rights, p. 110 ; Blundell v. Catterall, 5 B. & A. 287 to 294 ; D. of Somerset v. Fogwell, 5 B. A. C. 883.
    3. Even if the right of the King to convey were questionable, no doubt can exist of the power of the King and Parliament to convey this land; and the action of the Colonial Legislature was tantamount to that of Parliament.—See Act of Colonial Legislature, 1732 ; Kent’s Notes, p. 97.
    4. These charters and the grants therein, have been abundantly and repeatedly confirmed by the people of the State of New York in convention, and in their Legislature.—Constitution of April 20, 1787, § 36 ; Recital of Act concerning streets, &c. Passed April 3d, 1798 ; Act appointing Commissioners, &c. Passed April 3d, 1807 ; Constitution of 1821, § 14 ; Act to Amend Charter. Passed April 7, 1830, § 26 ; Constitution of 1846, § 18 ; Act to Amend Charter. Passed April 2d, 1849, k 28. ■
    IV. The title of Gabriel Furman is younger than, and subordinate to the title of the corporation. It commenced only in 1785.
    V. He has no rightful claim to the locus in quo.
    1. The grant from Quackenboss to Furman was restricted to high water mark, by the term of his deeds ; and he cannot claim beyond that mark.—Angell on Tide Waters, p. 231; Lapish v. Bangor Bank, 8 Greenleaf, 35; Dunlap v. Stetson, 4 Mason Cir. C. Rep. 349.
    2. Even if considered as an ordinary riparian proprietor, the Owner of the soil under water, whether such owner be the Sovereign or his assigns, had the right to reclaim the land, and use it for commercial and municipal purposes.—Arnold v. Mundy, 1 Halsted Rep. p. 78.
    3. Gabriel-Furman acquired no right under the Act of April 3,1798, to the soil under water extending from Front street to South street.
    (a.) The grant from the corporation to Furman, of July 20, 1804, being by metes and bounds, conveyed only the lands to Front street, and nothing beyond it.
    (6.) The act of 1798, authorized the corporation to require the proprietors of lots adjoining South street, to make that street at their expense.
    (c.) If there were no proprietors or owners of lots adjoining the street, the Act further provided that such owners, opposite and nearest thereto, should make the street, and fill up the vacant space between their lots and the street; and on filling up the same, should be entitled to the space so filled up in fee simple.
    (d.) Furman could not be compelled to build South street opposite his grant to Front street, because the corporation were the proprietors and owners of the lots between Front and South streets; and the street opposite would be built at their expense.
    (e.) Any other construction of this law, would be unconstitutional ; as the State could only grant the land belonging to it, on the filling up of the same; and had no power to deprive the corporation of their property. Dartmouth College v. Woodward, 4 Wheaton, 518 ; Jewett et al. v. Taylor et al., 9 Cranch, 43 to 55; Kent's Com., vol. ii. pp. 275, 305, 306 ; Kent's Com., vol. iii. pp. 458, 459.
    VI. Gabriel Furman, and those claiming under him, are -estopped by the grant and lease of July 20th, 1804, from denying the title of the defendants to the lands in question. Duchess of Kingston's case, 2d vol; Smith’s Leading Cases, p. 483, &c., and cases there cited.
    Second.—After the grant to Gabriel Furman, on the 24th July, 1804, the corporation remained absolute proprietors in fee simple of all the land under water, mentioned in the first point, and which were not, by metes and bounds, granted as aforesaid to G-abriel Furman ; and had at the commencement of this suit full power to grant the same or any part thereof to any person or persons whomsoever.
    1. The true construction of the grant from the corporation to Furman, gave him no rights or privileges beyond the land so conveyed by metes and bounds.
    2. The corporation reserved the right to compel him to build exterior streets and wharves on the land so granted at his expense ; and as a compensation or equivalent for such expenditure, he would have been entitled to the wharfage of such wharves' when built, so long as the same continued to be so used. It was optional with the corporation to make such requisition ; and the same never was made.
    3. The corporation had the power to make the grant of the premises which were subsequently conveyed to Titus, to him or any other person. Pollard’s Lessees v. Files, 2 Howard’s Rep. 607 ; Lansing v. Smith, 4 Wend. Rep. 1 ; Laws of 1826, p. 43 ; Laws of 1837, p. 166 ; Ordinances of C. C. Rev. 1845, p. 220, §§ 11, 12, 13, 14, 15, 16, 17 ; Laws of 1845, p. 247, § 5, p. 248.
    Third.—The plaintiffs had a complete and ample remedy in a Court of Law; and a resort to a Court of Equity, was not necessary, and cannot be sustained.
    Fourth.—The plaintiffs’ bill should be dismissed with costs.
   By the Court.

Mason, J.

The decision of this cause depends on the construction to be given to the first and second sections of the act concerning streets, wharves, and piers, in the city of New York, passed April 3, 1798.

The first section, which is substantially the same as t]ie two hundred and twentieth section of the act to reduce several laws relating particularly to the city of New York, into one act,passed April 9, 1813 (2 R. L., p. 432), authorizes the Mayor, Aldermen, and Commonalty of Now York, to lay out, according to such plan as they should agree upon, streets or wharves, of the width of seventy feet in front, of those parts of the- city which adjoin to the Hudson and East rivers, and of such extent along those rivers respectively, as they may think proper, and that, as the buildirigs of the city should be further extended, it should be lawful for the said mayor, aldermen, and commonalty, from time to time, to lengthen and extend the said streets or wharves.

The second section, which forms the two hundred and twenty-first section of the act of 1813, before referred to, is as follows : “ That the said streets or wharves shall be made and completed according to the said plan, by and at the expense of the proprietors of land adjoining, or nearest and opposite to the said streets or wharves, in proportion to the breadth of their several lots, by certain days to be for that purpose appointed by the said mayor, aldermen, and commonalty, and that the respective proprietors of such of the said lots as may not be adjoining the said streets or wharves, shall also fill up and level at their own expense, according to such plan, and by the said days respectively, the spaces lying and being between their said several lots, and the said streets and wharves, and shall, upon so filling up and levelling the same, be respectively entitled to and become the owners of the said intermediate spaces of ground in fee simple.”

Gabriel Furman, the ancestor of the plaintiffs, was in his lifetime the owner of the upland opposite to the premises, in relation to which the controversy in this suit has arisen, and also by grant from the mayor, aldermen, and commonalty, of the soil under water, extending from high water mark into the river one hundred and thirty feet, beyond which there had been no grant by them at this .particular point, until the grant to Titus, after the commencement of this suit.

Ib was contended by the plaintiffs who have succeeded to the rights of their ancestor, that inasmuch as they are the proprietors of the land nearest and opposite to that particular part of South street, which is the subject of controversy, on their completing such portion of the street, and filling up the intermediate spaces, they became, by force of the above recited section of the acts of 1798, the owners of the intermediate space in fee simple.

The words of the act, it was argued,, are very clear and explicit.

In the first place, the burden, it was said, of making that portion of the exterior street, lying in front of their respective premises, and of filling up the intermediate spaces, is imposed upon the proprietors, from which they cannot escape. It is not optional with them to waive the benefit proposed to be conferred on them, and relieve themselves from the burden, but in case of their neglect or refusal to perform the duty when required, as provided by.the act, the corporation of the city can do it, on their account, and collect the expense incurred therein, by distress and sale of their goods, or by a sale of their lands adjacent or opposite to the street to be made.

It was further insisted, secondly, that the persons on whom this burden is cast, are also clearly indicated by the act. They are the proprietors of the land adjoining the street to be made, or if there should be no proprietor, that is individual proprietor, immediately adjoining any portion of the street to be made, the burden is imposed on the proprietor of land nearest and opposite to the street; and lastly, it was very clear that such proprietors, on making the street, and filling up the intermediate spaces, became, as a matter of course, the owners of such spaces in fee simple. ■

It would make no difference, according to this construction, whether a proprietor of upland had taken out a grant of any part of the soil under water, or not; such proprietor, though his ownership should not extend beyond high-water mark, is as much subject to the duty imposed, and entitled to the benefit conferred by the act, as if he had taken out a grant extending to within a few feet of the street to be made, and such we understood to be the position taken by the learned counsel for the plaintiffs.

The argument is plausible, and, at the first blush, appears to be conclusive. It is, however, open to several objections.

I. It proceeds on the assumption that the corporation of the city, are not proprietors within the meaning of the act, of such parts of the land under water given them by their charter, as they had not granted to individuals. The king himself, or the government, from which the charter is derived, it was said, had no such property in the land under water, as would authorize a conveyance of it to any individual, to the exclusion of the riparian owner, and the grant in the charter, of the soil under water on the East and North rivers, extending into the river four hundred feet beyond low water mark, merely gave to the city the power of the government, substituting, as to those subjects which were of a public character, the corporation instead of the crown.

It is, however, we think, well settled, that by the common law the king is seized in fee of all the lands under .the navigable waters of his realm, and entitled to grant and convey them. He has the property tam aqua quam soli, and of all profits in the sea, and in all .navigable rivers. So the property-of the soil-in all rivers which have the flux and reflux of the sea, belongs to the king, and not the lord of the manor adjoining, without grant or prescription. But, by grant or prescription, a subject may have the interest in the water and soil of navigable rivers, as the city of London has the soil and the property of the Thames, by grant (Com. Digest, Tit. Navigation, A. B.). This right of soil is entirely distinct from, and subject to the right of the public to pass over the waters with ships : and the jus privatum does not prejudice the jus publicum wherewith public rivers or arms of the sea, are affected for public use. Such is the doctrine of Lord Hale, in his treatise, de Jure Maris, which has always been recognised, both in England and this country, as authority upon this subject, and such was held to be the law by the Supreme Court of -this State, in Rogers v. Jones (1 Wend. 237), the decision in that case being based upon the ownership by the king, of the soil under water, in an arm of the sea, and his right ,to convey the same.

If we examine the charter of the city of New York, we shall find that it does not purport merely to confer upon .the city corporation the powers of government, but gives to it an estate in fee in the soil under water. It “ gives, grants, ratifies, and confirms unto the mayor, aldermen, and commonalty, and to their successors for ever, all that space of ground and .so.rl under water,” describing it by metes and bounds with -the usual ImbendLum clause. (Kent’s Charter, § 38, p. 145, ed. 1851.) If this had been a conveyance to an individual, no question, we think, would ever have been raised as to whether these words were intended to vest in that individual the fee simple of .the soil; and we see no reason for applying -to them a different construction, because the grantee is a municipal corporation. The power to take and hold lands for their own use, is expressly given to the defendants in the charter. (Kent’s Ch. § 6, p. 20, § 12, p. 38, § 37, pp. 142,3, 4.) In Rogers v. Jones, before cited, a grant from the crown of land under water, included in certain metes and bounds, to the inhabitants of Oyster Bay, was held to convey to them an estate, in fee, to such land—and the title of the corporation, under the grant in the Montgomery Charter, to the land under water around the city, to the extent .of four hundred feet from low water mark, has been held to be valid by the highest authority. (Mayor, &c., of New York v. Whitney, in the Court of Appeals, not reported.)

, It is not material, in this connection, to inquire into the .alleged right of the riparian owners, with regard to the soil ..under water, in front of their respective properties. It is not pretended that the plaintiffs are the absolute proprietors in fee ■.of such soil. The whole argument on this section proceeds on j;he ground that they are not, but that they are entitled to Recome such on1 performing certain specified acts. But if the ^defendants are such proprietors by virtue of this grant in their .charter, and have an estate in the lands of the same nature that an individual would have under a similar grant, then the foundation of the plaintiff’s argument, to wit, that the plaintiffs are proprietors of the lands nearest and opposite to the proposed street, altogether fails. The land of the defendants intervenes between the street and the plaintiffs’ land. The plantiffs do not, therefore, come within the act, and cannot be compelled to make the street nor to fill up the intermediate Space—and, of course, are not entitled to the fee of such intermediate space.

II. But there is another and more serious objection to the plaintiffs’ position. If his construction of the act be the true One, it is a most glaring violation of the rights both of the adjoining proprietors and of the corporation. It is unjust to the riparian proprietors, because it compels them, from the mere fact of their being riparian proprietors, to fill up the water lots and build a street or wharf at their own expense, and in default of their doing so, levies the expense by distress on their goods and chattels, and by sale of their real estate. If the government; or a municipal corporation by authority of the government, can require this to be done when the value of the land thus reclaimed will bo an equivalent for the expense, they may also require it when such value will be no compensation, but the expense be ruinous to the riparian owners.

But the act on this construction is equally unjust to the defendants. It takes away from them all the estate conveyed to them by their charter, of the soil under water, or at the best, allows them to hold it merely as trustees for the riparian owners, until the wharf should be made. Of course, they have no right to grant the soil to any person except the riparian owner, nor to receive any quit rents, nor to reserve any ground for the streets intermediate the line of the shore and the exterior wharf, nor to require, as a condition of their grants,, that such intermediate streets be built—and this is done without any release or surrender being suggested on the part of the defendants ; but by a simple act of power, this valuable property, derived from the sovereign authority and enjoyed by the defendants for upwards of a hundred years, is taken from them, and parcelled out to the various riparian proprietors, subject to certain incumbrances. It becomes us to pause, and be well assured of the correctness of such a construction of the act. It certainly is at war with all our ideas of law and justice,, and indicates on the part of the legislature an utter disregard of those safeguards, which the constitution has thrown around private rights.

We are told, however, that the defendants have no right to complain, inasmuch as the act was passed on their application and with their assent; and we are referred to the petition presented by the corporation to the legislature previous to the passage of the act, in support of this position. If it be true that the act was passed in compliance with the prayer of the defendants, and that they were willing to surrender the property in this manner, in consideration of the powers conferred on them, of compelling the building of the exterior streets, it would present a serious question, how far they are now estopped from denying or repudiating the consequences of their own acts.

But let us see what the defendants did ask the legislature to do.

The petition states, that they had directed a permanent street, ■ of seventy feet in width, to be laid out and completed at and on the extremity of their grants already made and thereafter to be made to individuals, on the East river, called South street, and on the North river, called West street; that by reason of the irregular course of the shore at low water mark, the grants theretofore made extended to unequal distances, and that although the petitioners were willing to give the soil under water, on which the streets were to be made, yet it was doubtful whether they could compel any of the proprietors of the lots fronting on these streets to make them in any given reasonable time—that they also thought it desirable to extend piers at right angles from these permanent streets, but that it was doubtful whether they could compel the individual proprietors of the wharves to build the piers, or whether, in case of refusal by the proprietors, the petitioners could build them at the expense of the -city ; and that, forasmuch as some adequate remedy was necessary in the premises, they prayed the legislature would confer on them such authority as should be proper to remove the doubts and difficulties above stated, and to make such other provision as to the legislature should seem meet.

The object, then, which the common council had in view, was to lay out permanent exterior streets, at the extremity of the grants, made and to be made to individuals. The previous issue of grants to the full extent of the four hundred feet, is assumed. It is also implied, that those grants contained covenants binding the grantees to make and build the exterior street. The difficulties complained of, were the unequal termination of the grants, rendering it impossible to make regular streets at their extremity, and the want of adequate power to compel their grantees to make the streets, within a reasonable time—the ordinary legal remedies upon a grant or lease not being sufficiently prompt or effectual to enforce the speedy completion of improvements in which the whole community was interested. They asked for no relief against riparian proprietors, or against persons whose grants did not exhaust the whole "four hundred feet—but only against their own grantees, and those whose grants extended to-the full limit of the corporation’s property.

Now it is difficult, we apprehend, to argue from this petition that the common council applied, for a law which should, in effect, take away this property from them, and confer it upon the owners of the land nearest or adjoining to the exterior streets—whether mere riparian proprietors, or proprietors of some part of the land under water, by. grant from themselves— or which should in any manner impair their title to such portion of the land as they had not already conveyed. The case.. of persons in the situation of these plaintiffs, does not appear to have been in the mind of the petitioners ; they sought for no relief against such, and if the legislature have in reality taken-away from the defendants these lands, and given them to the riparian proprietors, it certainly was not done on the applicar tion of the common council.

It is not to be denied, however, that the law in question was; assented to by the defendants ; at least no act has been shown' by which they rejected or protested against it. It has, moreover, been on the statute book for upwards of half a century— and on two several occasions since its original enactment, has-, been re-affirmed and re-enacted by the legislature.

It becomes material, then, to ascertain the meaning and true construction of the act in question.

“ The only rule,” said Lord Chief Justice Tindal, in the. case of the claim to the Dukedom of Sussex (8 Lond. Jur. 795), “ for the construction of acts of parliament, is, that they should be construed according to the intent of the parliament which passed the act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves, alone, do in. such case best declare the, intention of the lawgiver. But if any doubt arise from the, terms employed by the legislature, it has always been held aa a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse,’ to the preamble, which, according to Chief Justice Dyer, is a key to open the minds of the makers of the act and the misr chiefs which they intended to redress.”

The doubt and difficulty in this case arises upon the terms “ Proprietors of the lands adjoining or nearest and opposite to said streets.” Who are the persons here intended ? If there should be any spaces along the shore, for which the corporation had not made any grant to individuals, would the owners of the upland fall within the description óf proprietors of lands nearest and opposite to said streets ? or is the term to be confined to those persons who had become proprietors by grants from the corporation to the full extent of the four hundred feet? The whole case turns on the answer to this question.

Let us then, with the preamble as our key, endeavor to enter into the minds of the makers of the act.

It must be premised, however, that the original grant to the corporation of the four hundred feet beyond low water mark, was made with a proviso or condition “ that of the wharves to be run out there should be left towards the East and North river forty feet broad as well for the greater convenience of trades, as at any time thereafter, for the government to plant batteries thereon in case of any necessities.” (Kent’s Charter, § 38, p. 148, ed. 1851.)

The preamble to the act then recites, First, The desirableness of having streets or wharves of seventy feet in width laid out and completed in front of those parts of the city which adjoin to the East and North rivers, and of having piers extended from said streets into the said rivers respectively. It is to be observed here, that the legislature treats all within the line of the proposed streets, including the four hundred feet of the water grant, as part of the city, and both rivers as being in fact bounded by the extremity of the four hundred feet. The preamble next recites, that the mayor, aldermen, Ac., had by petition represented that they were disposed to make the said improvements, but that difficulties had arisen as to the execution of a proper plan for that purpose from several causes, one of which is stated, viz. that from the curving and irregularities of the shore, the grants made by their predecessors were deemed to extend to unequal distances in the rivers ; that doubts had arisen whether they could compel the proprietors of lots fronting on the rivers, to make the streets and build the piers within a reasonable time, and whether the petitioners could, without a breach of the conditions and covenants contained in their grants to individuals, upon the refusal or neglect of such proprietors, sink, build, and make, the piers and wharves, at their own expense, which doubts and difficulties could only be removed by the legislature. The proprietors here referred to, are proprietors of lots, not on the shore, but fronting on the river as bounded by the four hundred feet, and proprietors holding under grants from the corporation, which grants contained covenants on the part of the grantees that might be affected by the proposed improvements.

The object of the act then, as we gather it from the preamble, was two-fold. 1st. To establish regular exterior streets of seventy instead of forty feet in width, and 2d. T o compel the building of the streets by those grantees of the corporation who were proprietors of lots fronting on the rivers, that is, at the extremity of the four hundred feet beyond low-water mark on the natural shore, which was established in the charter as the boundary of the city. The preamble has no reference whatever to owners of land on the shore, or to any other proprietors, but those whose lands ran out to the full extent of the four hundred feet, for they alone could be said to be fronting on the river.

The act next proposes to accomplish the end in view, and to remove the doubts and difficulties which were represented in the preamble as standing in the way. “ Therefore,” it is added, “ Be it enacted, &c.”

And the first section authorizes the mayor, &c., to lay out such streets as “ are hereinbefore mentioned in front of those parts of the said city which adjoin to the said rivers,” using in this respect the very phraseology of the preamble, and of course in the same sense in which it is there used.

The second section declares that the streets or wharves shall be made at the expense of the proprietors of land adjoining, or nearest ánd opposite to said streets. There can be no doubt that, the proprietors of land adjoining the streets must be grantees from the corporation, or the corporation themselves, because the title to the lands under water adjoining the proposed streets, had by charter been vested in the corporation, and if it did not continue in them, must of necessity have been derived from them. Without reference to the preamble it-might be a matter o-f considerable uncertainty who were the persons intended by the term “ proprietors of land nearest and opposite to the streets.” But the preamble we think solves the difficulty. It shows, as we have seen, that the act was intended to reach grantees of the corporation, who were bound to make the street in front- of their lands, but whose grants,, by reason of the irregularities of the-shore, did not all come up to the line of the proposed street or wharf. The street was to be straight. As the grants could-only extend four hundred feet beyond low-water mark, the outer boundaries would partake of the sinuosities and irregularities' of the natural shore, and there would therefore, of necessity, be, ih- many cases, a space left between the extremity of the land held under the grant and the proposed street; and the proprietors of lots which in this manner failed of reaching the streets or wharves, must be the parties mentioned in the- act as proprietors of lands nearest and opposite to the said streets or wharves, such persons had a duty imposed upon them beyond any that could have been called for by their grants from the corporation. They were required to fill up these intermediate spaces, belonging, not to the corporation,, but to the State, and by way of compensation for so doing, the State gives them the spaces thus filled up, in fee simple.

We have thus-by the aid of the preamble, we think, arrived at a satisfactory exposition of the statute. The plaintiffs’ construction makes the legislature, while proposing to accede to the wishes of the corporation, absolutely strip them of a valuable property, which at the time of the passage of the act they had enjoyed for upwards of fifty years, and bestow it upon those whom the plaintiffs term the riparian proprietors, merely upon making the exterior street or wharf.

According to the construction we have given, the legislature carries out fully and fairly the wishes of the corporation, as stated in the preamble to the act. and instead of depriving them of their property, in a summary and unconstitutional manner,, makes a further grant of their own land to the corporation grantees in order to effectuate the object in view. Nor does the act on this construction operate harshly or unjustly upon those, who had previously received water grants to the full extent of the four hundred feet. If such grants called for an exterior street of only forty feet in width, although the grantees-were not released from their covenant in regard to the street, but, on the contrary, required to make a street of increased width; still, there is nothing in the act depriving them of the right to call on the corporation for compensation by reason of. this- addition to their burden, and of the loss of thirty feet in-width of their property, should it be required for the purposes'of the street; and in those cases in which the grantees were-required to fill up beyond the limits of their grants, the gifts of the land so filled up would seem to be ample compensation. On the other hand, where grants had not been, issued-, the corporation devoted to the public thirty feet in width of their own land, without any remuneration : and this is what we suppose-is meant by the declaration in their petition, “ that they were willing gratuitously to give the soil under water on which those-streets of seventy feet were to be made.” A new remedy, it is. true, was given to enforce ,a compliance by the grantees with-their covenants in relation to building the street, but that was-rendered necessary from the fact that their performance was-matter of public concern, and it was not meet or proper that the interests of the community should suffer from the neglect,, or the-inability, of any of the individual grantees.

We have entered into this examination of the statute with much more minuteness, and at greater length than may appear to be necessary ; but the question we have discussed, is ojio of great difficulty, on which we confess we, at first, had serious-doubts, and it was due as well to the ability with which the-cause was argued' on both sides, as to the large interests-involved, to state fully and particularly the grounds on which we rest our decision.

If we have given the true construction of the act, the plaintiffs must fail—their claim is founded upon the title which they allege they acquired by virtue of the second section. They arano t, however, as we have seen, the proprietors-contemplated by that section—they have no land adjoining, or nearest and opposite to South street—and not coming within the purview or meaning of the act have no duties imposed upon them by it,, and are not entitled to any benefit which it confers.

There is one argument in support of the plaintiffs’ construction of the act which remains to be noticed.

It was urged, with great earnestness, by at least one of the counsel, that the plaintiffs were riparian owners, and that persons standing in that relation were entitled to the soil under water opposite to their upland, as their own property—that the title and interest of the government, and of course of the corporation, cannot override this inherent right of the riparian owners to the soil—that if the grant to the corporation in the charter was made with intent to vest the'fee in them in derogation of the rights of the riparian owners, it was void, as against them, and that the act of 1798 did nothing more than restore to the riparian owners that which had been previously taken from them, improperly and without right.

It might be' successfully answered in the present case, that whatever may be the general doctrine on this subject, these plaintiffs cannot be considered riparian owners. The charter which contained the grant in question was executed in 1732, and was confirmed by the constitution of 1777. The plaintiffs derived their title from the state, under conveyance by the •Commissioners of Forfeiture in 1784, more than fifty years after the date of the charter, and eight years after its confirmation by the constitution. The charter had established, the permanent line of the river at four hundred feet beyond low water mark, and had provided that a street or wharf should be built at the extremity of those four hundred feet, so that in contemplation of law the real side or bank of the river was, not the natural, but the legal or artificial boundary. The plaintiffs’ ancestor purchased with knowledge of this fact, or is chargeable with knowledge of it, and with knowledge therefore that his front on the river was liable to be cut off by the formation of this exterior wharf, under a title prior to his own. He was not as against the defendants the riparian proprietor, but they, the defendants, by virtue of their prior title, were themselves bounded on the line established by the sovereign power, and thus were the true riparian owners.

But we prefer to place our answer to this objection on broader grounds. We deny the position of the plaintiffs’ counsel altogether.

It results from the nature of the estate of the crown, or the government, in the property, that the riparian owner does not possess this right. There cannot be two owners to the same piece of land. Lord Hale quotes two decisions, in which the claim of the riparian proprietor, as against the king, was held to be invalid. (P. 13.)

If the crown has the estate in fee, it follows also, that it can be granted. There is no such qualification in the books, that the soil cannot be granted to any person but the riparian proprietor. Lord Hale expressly says, that the king may license the erecting of quays, or other buildings, on the sea-coast, even below the low water mark, where they are not in fact annoyances or nuisances (Hale de Portibus Maris, 85. Hale de Jure Maris, 22), and that without the qualification contended for by the plaintiffs.

It is requisite, for the sake of commerce, that this power should exist. The necessary improvements, such as the erection of wharves and streets, on the river adjoining a great city, demand it. The Colonial Government, with a wise forethought, made provision for the erection of the necessary wharves and docks for this city, more than one hundred years ago ; and under that provision, the execution of which was committed to municipal authorities, the necessary wharves and streets have been, from time to time, erected as the public wants required. If the property, then, is vested in the government, or the Corporation by grant from them, there seems to be no reason why they may not deal with it as with any other property which they own, and ask for it a price proportioned to its value. The plaintiffs admit the right of the state to insist on the erection of wharves by the riparian owners, as the condition of the grant, and have no objection to a quit rent, provided it be a small one. If any quit rent can be reserved, the amount of it must, from the nature of the case, be discretionary ; and if a quit rent, why may not a sum, in gross, be demanded? The utmost that the owner of the upland can ask, is the first offer—the preemption—but if he declines to buy, and no grant can .be made to any other person in the event of his refusal, then he has the power to dictate the terms upon which the grant shall be made. This cannot be, especially where the interests of commerce are so greatly concerned, as in the present case. The plaintiffs have had all that they could in law or in equity ask, the first offer of the property on terms adjudged to be fair and reasonable, by the public officers appointed, for the purpose. This offer they declined, and if they have lost the property, they have only themselves to blame.

A single word as to the wharfage. The counsel for the plaintiffs argued on the supposition that the grant made to Fur-man, contained an absolute and unqualified grant of wharfage for ever. The grant extended only to Front street. It was perfectly well known to all the parties at that time, that the permanent line extended further into the river, and that the charter contemplated the building of South street at the extremity of the line, whenever the wants of the public demanded it. Now the covenant in the grant is not that the grantee should always be entitled to wharfage, but merely to the wharfage to accrue from Front street. Of course, when Front street was no longer an exterior street no wharfage would accrue from it, and the covenant would not be violated ; it would only be rendered inoperative, by reason of an event contemplated by both parties when the covenant was made.

The result of the whole is, that the bill must be dismissed; but we do not think the plaintiffs ought to be charged with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Edwin Bartlett v. The Mayor, Aldermen, and Commonalty of the City of New York.
    The terms Domicil and “ Residence ” are not synonymous.
    A person can have but one domicil, but he may have two places of residence* which he occupies in succession.
    The Act of the 25th March, 1850, relative to the assessment of taxes, contemplates and provides for such cases.

      Held, that under the provisions- of that act, the plaintiff by his own showing was, properly taxed as a- resident of the city of New York, and was therefore not entitled to an injunction to restrain the collection of the tax, which had there been imposed upon him.
    Order at special term denying injunction affirmed .with costs.
    (Before Sandfokd and Mason, J. J.)
    June 7, 14, 1851.
    This was an appeal from a decision of the chief justice at a special term, denying a temporary injunction.
    The complaint stated that a tax upon personal estate had been assessed against the plaintiff, as a resident of the fifteenth ward of the city of New York, to the amount of $568.15, for the year 1850 ; that the tax had been confirmed and was required to be paid, and that he had received notice from the receiver of taxes that a warrant would be issued against him for its collection. That prior to the month of May,
    1849, he was a resident of and housekeeper in the city of New York, but that in the month of June, 1849, he broke up housekeeping and removed from the city of New York with his family, and ceased to reside therein, and took up his residence in the town of Mount Pleasant, in the county of Westchester, and had from that time been, and at the time of the confirmation of the tax was, a resident of the town of Mount Pleasant, and did not then reside in the city of New York, unless the facts thereinafter stated should in law amount to such residence.
    The complaint further stated that the plaintiff was engaged in erecting a dwelling house for his own use at Mount Pleasant, but th¿ same was not completed, and the house in which he had resided in the summer not being suited for, his comfortable occupation in the winter, he took rooms at the Union Place Hotel in this city, about the first of December, 1849, and occupied the same with his wife until about the end of April, 1850, intending, nevertheless, to return to Mount Pleasant aforesaid, and to be and remain a resident of that place, and •not to be a resident of New York : that he left his servants at his house in Mount Pleasant, bringing with him to New York but a single servant; that he actually did return to Mount Pleasant about the end of April, 1850, and there remained actually resident until on or about the first day of December, 1850, when his dwelling house being still unfinished, he took. apartments for the winter at another hotel in the city, but with the same intent, to be, and continue a resident of Mount Pleasant, and not of the city of New York.
    The complaint further stated, that during all the time aforesaid, his principal, and only place of business, was in the first ward of the city of New York. It then further states, his presenting an affidavit to the assessors that he was not a resident of the city of New York, which was delivered by them to the commissioners of taxes, during the time limited by law for the correction of the tax list, but that the commissioners refused to strike his name out of the tax list. Wherefore the plaintiff prayed judgment that the tax had not been lawfully imposed, and that the collection of it might be enjoined, and for further relief. On this complaint a motion had been made by the plaintiff, before his honor the chief justice, for a temporary injunction, which motion, after hearing the counsel on both sides, the chief justice denied ; from which decision the plaintiff appealed to the general term.

      A. S. Johnson, for the plaintiff and appellant.

      H. E. Davies, for the defendant and respondents.
   By the Court.

Mason, J.

The general act for the assessment and collection of taxes provides that every person shall be assessed in the town or ward where he resides, when the assessment is made, for all personal estate owned by him, or under his control as trustee, &c. (1 R. S. p. 389, § 5.)

The act of the 25th of March, 1850, on this subject, enacts that in case any person possessed of such personal estate shall reside during any year in which taxes may be levied, in two or more counties or towns, his residence, for the purposes, and within the meaning of the section quoted above, shall be deemed and held to be in the county and town in which his principal business shall have been transacted. (Laws 1850, p. 142.)

The complaint denies that the plaintiff was a resident of any other place than Mount Pleasant in Westchester county, and such was the position taken by his counsel in the argument before us. On the other hand, the counsel for the corporation contended that the facts stated in the complaint showed, that the plaintiff resided in New York, as well as in Westchester, and that his only place of business being in the former place, he was properly taxed there.

It appears to us, that the whole of the argument of the plaintiff’s counsel, and the whole frame of the complaint, was based on a misconception of the meaning of the term residence, and the confounding it with the term domicil. The Supreme Court, in the matter of Thompson (1 Wend. 45), adopted the definition given by Yattel, of the word “ domicil.” “ The domicil is the habitation fixed in any place, with an intention of always staying therebut they held in that case, that a man might reside abroad, though his domicil was in this country—that no length of residence; without the intention of remaining, constitutes domicil, and therefore, that a person who came to this city, and established himself in business here, but who, while his business was still carried on here, had gone to Scotland, partly on business, and partly for pleasure, and remained there two years, though with the intention of returning, was liable to be proceeded against as a non-resident debtor.

The same doctrine was laid down by the same court in the case of Frost v. Brisbin (19 Wend, 11). In that case the defendant, a resident of this State, went to Milwaukie, and opened a store there, which he attended to for ten months, but without the intention of remaining, unless his business was successful, having left his family, in the mean time, in this State. Yet the court held that he was a resident of Milwaukie, and was liable to be arrested in this State, under the act of 1831, as a non-resident. In this case, as in the last case cited, the domicil was in this State, while the residence was abroad.

The facts stated in the complaint before us, show that the plaintiff's domicil is in Westchester county—his home is there— and his residence also for a little more than half the year, but that is not inconsistent with the fact that his residence is in the city of New York, for the remainder of the year.

Residence is defined by Webster to be “ the dwelling in a place for some continuance of time,” and the court in the case of Frost v. Brisbin just cited, say “ there must be a settled, fixed abode, an intention to. remain permanently at least for a time, for business or other purposes, to constitute a residence within the legal meaning of the term.” The plaintiff establishes the fact of his residence in New York precisely in conformity with this definition. He came to the city in December, 1849, “for the winter season,” and about the first of December, 1850, “he again took apartments for the winter.” By his own showing, he came with the intention of remaining, and in 1849, “ did remain permanently, for a time, in the city.” It was his settled fixed abode for the winter.

The act contemplates a person having two places of residence. That he resided in Westchester is conceded ; but during the four or five months in which he dwelt in New York continuously, could he be said to be residing or dwelling in West Chester? To give any meaning to the act, he must be considered as residing in New York and in West Chester for the several portions of the year in whiph he abode or dwelt in them respectively, and this construction, we have seen, is in accordance with the strict legal meaning of the term “ residence.”

As his place of business as well as of residence was in New York, he must, under the act, be assessed there, and he was properly assessed in the 15th Ward, in which he resided.

The judgment of the Special Term must be affirmed with costs.


text:
    Camden & Amboy Railroad Company v. Finch.
    The statute (2 Rev. Laws, 429, § 212, 213, 215, 217) which gives the owner oí a wharf the right to distrain for wharfage, does not apply to a. case where a party so used the pier, which projected from a bulkhead north of the owner’s wharf, as to prevent him from deriving any benefit therefrom. It was an obstruction to the owner’s enjoyment, but not a use of it, from which a contract to pay wharfage could be implied.
    (Before Sanuforb, Mason, and Camfbelll, J. J.)
    June 14, 1851.

      Demurrer to Pleas.—This was an action of replevin brought by plaintiffs, for goods taken by the defendant from on board plaintiffs’ steamboat, while lying at a certain pier in the city of New York.
    The defendant, by his cognisance, acknowledged the taking, and justified the act by setting up that he distrained the goods as bailiff of Mr. Lispenard Stewart, who was the landlord and owner of a bulkhead 100 feet long, on West street, between Watts and Hoboken streets. That the plaintiffs’ steamboat used and enjoyed this bulkhead for the space of 32 days.
    The plaintiffs’ plea traverses this, and sets up, that during the times mentioned in the cognisance there was a pier extending from the bulkhead, which pier and bulkhead were lawfully in the possession of, and held by plaintiffs, under a lease from Stewart, which lease was dated May 1,1844, but not delivered until March, 1847, at which time this pier was appurtenant to, and constructed in front of, and extending from the bulkhead, and that the demised bulkhead extended to, and joined the bulkhead mentioned in the cognisance. That the pier was lawfully used, at the time alleged, by the steamboat of plaintiffs. That said pier and bulkhead, so in the possession of plaintiffs, and so used by them, were so situated, in reference to the undemised bulkhead of Stewart, that in making fast to, and using the former by plaintiffs’ boat, it was necessary that a portion of the steamboat should be fronting the undemised bulkhead ; and that in using the latter by vessels, it was necessary that such vessels should be fronting the said' pier. That the steamboat; at the time mentioned, used the said pier ; absque hoc, that the steamboat used the bulkhead or wharf, in the cognisance mentioned.
    The defendant replied, that before the erection of the pier, Stewart was possessed of 130 feet of bulkhead on West street, and that, while so possessed, on the 1st May, 1844, he executed a lease to the Messrs. Stevens, and leased to them so much of the bulkhead as lies north of a certain notch in the dock log, being 30 feet of the north part, for a term of years. That he remained the owner of that part of the bulkhead'lying south of the demised part, and was lawfully entitled to the wharfage accruing thereon. That at the time of the demise, the Messrs. Stevens hired' from Stewart, for one year, the right of laying up a steamboat in the basin" between Hoboken and Watts streets, and that they continued to hire up to May 1,1847. That after said demise of said 30 feet of bulkhead, Messrs. Stevens, without the license of Stewart, built a pier extending, from the bulkhead so demised, 150 feet into the river, thereby, and by the use thereof by placing steamboats side by side alongside of the same, preventing any access of vessels to Stewart’s undemised bulkhead, except what was made by vessels laid up alongside of said pier, and alongside of those attached to the pier in the said basin, in front of said bulkhead. That the pier mentioned in the plea is the same pier as in the replication mentioned, and that plaintiffs’ steamboat was, at the several times mentioned, wholly in the occupancy of said basin in front of the bulkhead belonging to Stewart, and excluding all other vessels from the use thereof, at the respective times, during which, said steamboat was occupying the same.
    The plaintiffs demurred on the following grounds :—
    1st. That the facts set forth in said replication do not show a lawful power or authority in said Lispenard Stewart to dis-train, for the wharfage claimed in this action, on the chattels of said plaintiffs on board said steamboat, nor to warrant said defendant, as the bailiff of said Stewart, to take the same.
    2d. That said replication shows that said Stewart was not legally entitled to demand and collect the said wharfage from the said steamboat—inasmuch as it shows that said steamboat was not made fast to the bulkhead or wharf of the said Stewart remaining undemised—and that the said vessel did not use said bulkhead or wharf so remaining undemised.
    3d. That it appears that said steamboat was at the several times, Ac., made fast to a pier or wharf which was not in the possession of said Stewart, and to which he had not the title, for the purposes aforesaid.
    4th. That it appears that said John C. Stevens, Robert L. Stevens, and Edwin A. Stevens, were entitled to collect said wharfage ; as. said vessel was made fast to said pier in their possession.
    5th. That if said Stewart were entitled to collect wharfage from said steamboat while made fast, to said pier, yet it does not appear that he was entitled to distrain the said chattels of said plaintiffs, for the wharfage of said steamboat for several times, or for more times than once.
    6th. That said replication does not take issue with, nor confess and avoid the facts averred in said third plea.
    1th. That said replication does not traverse the avermentsmade in said plea relating to the lease therein set forth.
    8tli. That said replication sets up a traverse upon a traverse in said plea.
   By the Court.

Mason, J.

The demurrer in this case is well taken.

From an examination of the several sections of the statute upon the subject of wharfage in the city of New York (2 Rev. Laws, 429, § 212, 213, 215, 217), it appears that to entitle the-owner of a wharf to distrain for wharfage, the vessel on whose account the - wharfage is claimed, must have been fastened to the wharf, or to another vessel which was so fastened. An agreement to pay wharfage, is implied from the fact of the vessel so using the wharf, and the statute fixes the amount to, be paid.

But the ground on which the defendant rests the right to distrain in this case is, not that the plaintiffs used the wharf, but that they used the pier which projected out into the river from the bulkhead north of the wharf in question, in' such a way as to prevent the owners of the wharf from using or. deriving any benefit from it. It was an obstruction interposed by the plaintiffs to the enjoyment of the wharf by the owners— not a use of it by the plaintiffs, from which a contract to pay wharfage can be implied.

The owners of the wharf may be entitled to compensation in damages, for the injury they have sustained ; but we are-clearly of' opinion that they cannot obtain this compensation by distress. If a-person should unlawfully obstruct the passage to his neighbor’s dwelling, so as to debar him all access to it, and thereby prevent him from enjoying it, he would be liable to respond in an action for the wrong done, but it' would be difficult for the injured party to sustain an action of assumpsit for use and occupation, or any other proceeding founded on contract : and it is a well settled principle that distress for rent ■can only be resorted to where there has been an agreement to pay rent, either expressed or implied (Valentine v. Jackson, 9 Wend. 202).

There must be judgment for the plaintiff on the demurrer.


author: Duer, J.

text:
    Frederick P. James v. Alexander Chalmers.
    The presumption of law that the holder of a promissory note is its owner, is not repelled by showing that it came into his hands after it was due.
    Proof of a valuable consideration js only necessary to be made when a defence is set up, which, unless the plaintiff was a purchaser for value and without notice, would conclude him.
    In all other cases a plaintiff who sues as an endorsee, and proves his title as such, is to be deemed the real party in interest under § 111 of the Code.
    These points assented to by all the judges. Brisbane v. Pratt (4 Denio, 63) is not to be construed as sanctioning an opposite doctrine.
    Order at special term, denying a re-hearing, affirmed with costs.
    (Before Dues and Campbeli, J.J.)
    (17th June, 1851.)
    This was an appeal from an order made by Mr. Justice Paine at special term, denying a motion on the part of the defendant for a re-hearing.
    The action was brought by the plaintiff, as endorsee of a promissory note, against the defendant as maker, and the referee (M. Ulshoeffer, Esq.) had reported that the plaintiff was entitled to recover the full amount of the note, with interest. It appeared from the report, that the note was given to Adams & •Brownell, and was endorsed by them ; that before it was due they transferred it, for value, to one Lucius S. Beardsly, who sold it, after its maturity, to one Wm. M. Parks, from whose hands it passed into those of the plaintiff, but it did not appear that any "consideration passed from the plaintiff to Parks. The title of the plaintiff w;as put at issue by the pleadings.
    J. Aitken, for the defendant,
    insisted that as it did not appear - that the plaintiff had given any value for the note, and it was certain that he received it after it was due, it was a presumption of law that he was prosecuting the suit for the benefit of Parks* and the court was therefore bound to say that he was not the real party in interest, and under the Code, § 111, had no right to maintain the action. He relied upon the case of Brisbane v. Pratt (4 Denio, 63), in which Mr. Justice Jewett said that the holder of a promissory note, under the like circumstances, is to be deemed a mere trustee, as a controlling authority.

      W. C. Betts, for the plaintiff,
    was stopped by the court,
   Duer, J.

There is no exception from the rule, that the holder of a promissory note sufficiently proves his title as owner by the production of the note, and proof of the signatures of the maker and endorser. Whether the note came into his hands before or after it was due, he is not required to show that it was transferred to him, for value, unless a defence is set up that would otherwise conclude him. Where no defence is interposed, even his admission that he paid no value, would not destroy his title as owner. The mere delivery of a note, if not accompanied with a trust, would be sufficient to vest an absolute title, since, unexplained, it would be evidence of a gift. If the plaintiff is a trustee for Parks, the proof rested upon the defendant.

The observations of Mr. Justice Jewett, in Brisbane v. Pratt, must be understood in reference to the particular circumstances of that case, in which a defence was set up that could only be met by proof that the plaintiff was a bonâ fide holder for value. Whether in that case the declarations of a former holder were properly admitted in evidence to impeach the title which he had passed, is a question that we are not now called upon to consider.

Although we can see no reason for doubting that the order appealed from must be affirmed, we shall suspend our judgment until we have consulted our brethren, and if the question shall be regarded by them as at all doubtful, the case shall be called again upon an early day.

Upon consultation, the judges were all of opinion that a further argument was unnecessary, and that the order at special' term should be affirmed.

June 21st. The order was accordingly affirmed and final judgment rendered for the plaintiff,

       Affirmed in Court of Appeals, May term, 1852.'