Opinion
July 6, 1922.
Charles D. Newton, Attorney-General [ Anson Getman, Deputy Attorney-General, of counsel], for the appellant.
Frank B. Lown, for the respondent.
This controversy is between the State and a riparian owner along a navigable stream where the tide ebbs and flows in respect to her title to lands filled in in front of her uplands.
Many comments of the courts in cases to which the State was not a party (as Matter of City of New York, 217 N.Y. 1) and in cases arising along the Mohawk and upper Hudson rivers (as Danes v. State of New York, 219 id. 67) are not applicable. This riparian owner has no grant from the State and no harbor or dock line has been fixed in front of her uplands. Although the claimant's uplands have been deeded to the city of Poughkeepsie, her property rights and interests here in issue must be determined as of the time she was the owner of the uplands. The rights of either party should not be prejudiced by the acts or proceedings taken under the agreement, made between officers of the State, the mayor of the city of Poughkeepsie and the claimant, to have the existing dispute adjusted.
The Hudson river at Poughkeepsie is a public, navigable stream, where the tide ebbs and flows. The title to the Hudson river at this point below high-water mark is in the State as sovereign in trust for the people. ( Sage v. Mayor, 154 N.Y. 61, 73; Stockton v. Baltimore N.Y.R. Co., 32 Fed. Rep. 9, 19); and it has been held in Coxe v. State ( 144 N.Y. 396) that this title cannot be alienated, except for a public purpose or benefit. The State, as sovereign, has the right to control and use the Husdon river and the lands thereunder for navigation and commerce and when the occasion arises may exercise it. In Sage v. Mayor ( supra, 79) the court said: "Although, as against individuals or the unorganized public, riparian owners have special rights to the tideway that are recognized and protected by law, as against the general public, as organized and represented by government, they have no rights that do not yield to commercial necessities, except the right of pre-emption, when conferred by statute, and the right to wharfage, when protected by a grant and covenant on the part of the State, as in the Langdon and Williams cases." ( Langdon v. Mayor, etc., 93 N.Y. 129; Williams v. Mayor, etc., 105 id. 419.) There is here no right of pre-emption and no grant.
The claimant as riparian owner has the right of access to the stream. This right means that she may not only use a skiff or canoe at the shore, but she may reach waters of the river navigable for cargo-carrying boats, and for this purpose may, without any grant or permission from the State and when no harbor or dock line is fixed, build out from the lands below high-water mark with earth, stones or timbers a dock or wharf to the navigable part of the stream. This right she has and may enjoy subject always to the superior right of the State to control and use the land and waters of the river for the people to promote or improve navigation and benefit commerce; and this right of the riparian owner must ever yield to this superior right of the State. ( Rumsey v. N.Y. N.E.R.R. Co., 133 N.Y. 79; Saunders v. N.Y.C. H.R.R.R. Co., 144 id. 75; Town of Brookhaven v. Smith, 188 id. 83, 84.)
The Barge canal was constructed as a highway of commerce from the Great Lakes to the Hudson river and thence down the Hudson river to the Atlantic ocean. In perfecting this work it has been necessary to dredge the Hudson river in places and to have canal terminal points where the articles of commerce and cargoes may be loaded and discharged. The Barge canal, including its terminals, is an instrument of public navigation and commerce upon the Hudson river. The occupation and use of lands and waters of the river for a barge canal terminal is an occupation and use for the purpose of improving the navigation of the Hudson river and to regulate and benefit commerce.
Since the State holds the title to the bed of the river as sovereign in trust for the people, title thereto cannot be acquired by adverse possession. ( People v. Baldwin, 197 App. Div. 285, and authorities cited, 288.) In Saunders v. N.Y.C. H.R.R.R. Co. ( supra, 84) Judge O'BRIEN said: "There is not, I think, any authority in this State to sustain the proposition that an adjacent owner can acquire title to lands under the waters of the Hudson river below high-water mark by filling it up, and the contention certainly has no foundation in reason or justice." The State cannot lose, by acquiescence or laches, its sovereign rights. ( United States v. Beebe, 127 U.S. 338, 344.) Title by adverse possession must always rest upon a claim of title under a presumed grant and upon acquiescence and laches upon the part of the owner; to institute it there must be an "`assertion of a right so as to expose the party to an action, unless he had a grant.'" ( Burbank v. Fay, 65 N.Y. 57, 65.) By exercising her right as a riparian owner she did not expose herself to an action by the State. She needed no grant to wharf out to the navigable part of the stream; no grant can then be presumed from her long exercise of her riparian right. No statute permits that title to lands as against the State may be acquired by adverse possession. The appellant invokes the Code of Civil Procedure (§ 362) and the Civil Practice Act (§ 31). These are limitation statutes which do not declare title, but renounce the right to sue. Under these acts title by adverse possession cannot be acquired; but they act as statutes of repose so that, in cases to which they apply, while title is not acquired by the occupant, the State will not sue to eject him. Section 31 of the Civil Practice At and section 362 of the Code of Civil Procedure, so far as important here, are: "When the People will not sue. The People of the State will not sue a person for or with respect to real property, or the issues or profits thereof, by reason of the right or title of the People to the same, unless either
"1. The cause of action accrued within forty years before the action is commenced; * * *."
This statute cannot apply to a proceeding in which the State is asserting its paramount sovereign rights in navigable waters. The State of course recognizes the right of the riparian owner to fill in his water front and build a dock or wharf to the navigable part of the stream. His doing so is no assertion of title as against the State, nor is it an invasion of any right of the State which would give it a right of action against him. Not until the occasion for improving navigation arises, and the riparian owner resists the State's demand, does a cause of action arise on the part of the State to remove or take possession of the filling-in, the dock or the wharf, which the riparian owner has constructed in front of his uplands. If, under the agreement between representatives of the State and the claimant, the proceedings that have been taken were to be considered, as the Court of Claims considered them, the equivalent of an action in ejectment on the part of the State, the State's cause of action to remove the construction placed upon her water front did not arise until it was determined by the State to improve that water front. Until such determination the riparian owner had the right to maintain such construction as she had and the State had not the right to appropriate it and use it.
The claimant has no title to the filled-in land and cannot have compensation as such. She exercised her right as the riparian owner. The filling in, the construction of a wharf to reach the navigable part of the stream, was placed by her rightfully and is her property. But it was so placed under the risk that the State might, at any time, improve the water front and remove the construction. All the buildings and structures above the surface of the soil had been removed years before this property was required by the State. The State does not seek this construction; it only seeks that of which it was the absolute owner, namely, the undisturbed bed of the stream below high-water mark and the use of the stream. It may be conceded that a riparian owner, having constructed a wharf or pier in front of his upland and the State having determined to improve the water front for the purpose of navigation, may remove and take his construction.
We hold that this riparian owner, who has no grant from the State, has no claim against the State for damages or for the value of the construction she has made to reach navigable water. ( Sage v. Mayor, supra, 71, 79, 80; Lansing v. Smith, 4 Wend. 9, and other cases above cited.)
It cannot be successfully maintained that, because the State has instituted a proceeding to appropriate the land, it has conceded that the claimant has property rights. The proceeding was taken in pursuance of the agreement. Just as the claimant is entitled, therefore, to be considered as owner of the upland for the purposes of this determination, so the State is freed from any concession or admission, and the repudiation of such concession or admission is set forth in the statement of claim. If the question were here, we should have to decide that the action of officials of the State in this respect was entirely without authority and that the State is not bound by any unauthorized concessions or unlawful acts upon the part of its officers. (See City of Mount Vernon v. N.Y., N.H. H.R.R. Co., 232 N.Y. 309, 315, 316.)
The judgment should be reversed and the claim dismissed, with costs. We disapprove of findings of fact Nos. 6, 7, 10, 11, 12, and conclusions of law Nos. 1, 2, 3 and 4.
All concur.
Judgment reversed on law and facts and claim dismissed, with costs. The court disapproves of findings of fact 6, 7, 10, 11 and 12.