Opinion
Argued June 8, 1908
Decided December 8, 1908
Francis K. Pendleton, Corporation Counsel ( Theodore Connoly and Charles D. Olendorf of counsel), for the City of New York, appellant. James A. Deering for Forty-second Street and Grand Street Ferry Railroad Company, appellant. M. Edward Kelley for respondent.
The long delay in the decision of this case has been due to the repeated consideration of conflicting views upon questions as to which the members of the court are now in accord. The question in the case which underlies all others is whether the American Ice Company has a valid and existing right to maintain a pier in the North river at the foot of Forty-third street. In the case of Knickerbocker Ice Company v. Forty-second Street Grand St. Ferry R.R. Co. ( 176 N.Y. 408) we held that the plaintiff there was the grantee of a "right to maintain a pier, and to collect wharfage, etc., at the foot of Forty-third street in the Hudson river, wherever that point should be located by lawful authority." The American Ice Company has succeeded to all the rights of the Knickerbocker Ice Company in the premises, and we shall briefly consider the question whether the title of the "ice company," as we shall call it, is valid or not.
Counsel for the appellants insist that the ice company never acquired a valid title to the right to build and maintain a pier because the resolution of the common council of the city of New York authorizing the grant was never legally adopted. The grant was made in 1852. At that time the common council was composed of two branches, one of which was designated as the board of aldermen, consisting of one alderman elected from each ward for a term of two years, and the other of which was called the board of assistant aldermen, consisting of one assistant alderman from each ward elected for a term of one year. These two bodies were vested with concurrent powers, which were exercised in separate sessions at different times, each body having the right to amend, reject or concur in any ordinance or resolution by a majority vote of the members elected. The charter also provided that there should be no joint committees of the council, except a committee on accounts.
This was the condition of the charter on the 18th day of November, 1851, when the board of aldermen adopted the following resolution: "Resolved that the pier, foot of Forty-third street, be sold to Caleb Lindsley, that the Commissioners of the Sinking Fund fix the price to be paid therefor, the counsel to the corporation to prepare the necessary deeds, and the proceeds thereof to be deposited in the City Treasury to the credit of the Sinking Fund for the redemption of the City debt." This resolution was adopted by the board of assistant aldermen on the 16th day of April, 1852, and approved by the mayor on the 19th day of April, 1852. It is the contention of counsel for the appellants that this resolution never became effective to authorize the grant to Lindsley because it was not adopted by both branches of the council in the same year, and the case of Wetmore v. Story (22 Barb. 414) is cited to support it. In that case the controversy was over the validity of a street railroad franchise granted under the same charter. There, as here, one branch of the common council adopted in a given year the resolution authorizing the grant, and the other branch of the common council adopted the resolution in the following year. In passing upon the validity of that grant the Supreme Court of this state expressed the view that there was a strict analogy between the common council thus constituted and a national or state legislature composed of two co-ordinate branches; and that no act, ordinance or resolution of either branch can be valid without the concurrence of both of the bodies as constituted when the particular measure originates in either branch. It is not to be denied that there is a certain analogy between the Federal and state legislatures on the one hand, and the similarly constituted municipal legislatures on the other, but it is an analogy that can only be carried to the point where practical considerations essentially differentiate national or state legislatures from similarly constituted common councils, the co-ordinate branches of which may meet at the same time or at different periods, and whose work is of such a character that it can neither be all initiated or finished at any particular time or place of meeting, or during the continuance of any particular membership. The co-ordinate branches of the common council of the city of New York, as constituted in 1851-1852, had the power to meet at the same time or at different times. The sessions of these bodies, whether held together or at separate periods, were continuous in the sense that they were not confined to a stated term which could only be brought to a close by concurrent adjournment. Some of their transactions were obviously and necessarily to be transmitted to and finished by their successors. This is one of the fundamental differences between this common council and the state legislature. The State Constitution of 1846, which was in force in 1851 and 1852, contained the provision that "if any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Legislature shall, by their adjournment, prevent its return; in which case it shall not be a law." The then existing provisions of the city charter were radically different. That statute declared that "If any ordinance or resolution passed by each board * * * shall not be returned by the mayor within ten days (Sundays excepted) after it shall have been presented to him, the same shall become a law, in like manner as if he had signed it, unless the close of the session of the common council shall prevent its return, in which case it shall not be a law, until the expiration of five days, after the commencement of the next session of the common council, by whom the ordinance or resolution shall be reconsidered if returned within such time, and be disposed of in the same manner and with like effect as if presented at the preceding session." (L. 1849, ch. 187, sec. 6.) This sharp contrast between the phraseology of the Constitution and of the statute is significant. The language in the charter was evidently used to meet the very situation that must have been anticipated with reference to a dual common council sitting in separate divisions on different days when there might be unfinished business at "the close of the session of the common council." The "close" referred to was obviously not the adjournment of one of the co-ordinate bodies on a particular day to another specified time, but the "close" of the year when newly-elected members came in. It seems to have been intended that despite such changes in membership all pending matters were to be disposed of "with like effect as if presented at the preceding session." It is true that the precise point here at issue is not provided for in express terms in the charter, but the language quoted seems clearly to recognize the continuity of the common council and to authorize the conclusion of the business of that body which had its inception in previous sessions or years. This has been the generally accepted view of this and similar municipal charters in this state. For more than half a century the city of New York has proceeded upon this theory, and other municipalities have followed her example. If we were now to adopt the radical change contended for by the appellants, it would throw our municipal governments into great confusion and result in a disturbance of property rights that would entail incalculable loss to many innocent individuals and corporations. The idea may be very cogently illustrated by an example even more simple than that presented by the facts set forth in this record. By far the larger number of our cities have common councils composed of a single board of aldermen elected for one or two years, as the case may be. If such a body is not continuous, and terminates whenever membership is changed by election, it must follow that all matters not finished at such times die with the particular membership which originated them, and must be commenced de novo with every change in the personnel of the body. It will readily be perceived that the situation is one in which the logic of theory must give way before the necessities of practicalness.
It is familiar knowledge that municipal legislatures have to deal with many matters, such as the building of sewers, the installation of water works, the paving of streets and the laying out of parks which originate under one membership, are carried on by still another, and are finally finished by yet another. The exigencies of practice have made this course necessary, and by common consent it has been followed. Relying upon its validity tax rolls have been confirmed, bonds have been issued, and an infinite variety of rights and obligations have been created. A present judicial determination, based upon the theoretical views which governed the decision in Wetmore v. Story ( supra), would result in a condition of chaos beyond description. These are but a few of the considerations which render it impossible for us to follow the decision in that case. We close this branch of the discussion by reiterating what we said in Knickerbocker Ice Company v. Forty-second Street Grand St. F.R.R. Co. ( supra), that the ice company was the grantee of "the right to maintain a pier, and to collect wharfage, etc., at the foot of Forty-third street in the Hudson river, wherever that point should be located by lawful authority," and we now add that the grant was a valid one.
The next question to consider is whether the right of the ice company is affected by this proceeding. That right was not to maintain a pier upon land specifically described by metes and bounds, but "at the foot of Forty-third street in the Hudson river wherever that point should be located by lawful authority." The pier granted by the city to Lindsley extended westerly into the river two hundred and eleven feet. Under proper authority it was later extended westerly a further distance of three hundred feet. There can be no doubt that ordinarily the grant of a pier right would include as appurtenant thereto a right of access over the adjacent lands under water. But the circumstances of this case are peculiar. The title to all these lands was originally in the city of New York. By two deeds dated July 1st, 1850, the city conveyed to Lindsley the lands under water to the south of Forty-third street, between high-water mark and the westerly side of Thirteenth avenue as then proposed to be laid out. These deeds contained the following convenant: that the grantee or his successors should "within three months next after he shall be thereunto required * * * at his own proper costs and charges, build, erect, make and finish or cause to be built, erected, made and finished, according to any resolution or ordinance * * * already passed or adopted, or that may hereafter be passed or adopted, five good and sufficient bulkheads, wharves, streets or avenues, which shall form so much and such parts of Forty-third street and of the Twelfth and Thirteenth avenues as fall within the limits of the premises first above described and are reserved as aforesaid from out thereof for public streets, and will fill in the same with good and sufficient earth and regulate and pave the same, and lay the sidewalks thereof." Also that the said grantee, or his successors, "shall and will from time to time and at all times forever hereafter, at his own proper costs, charges and expenses, uphold and keep in good order and repair the whole of these parts of the said Forty-third street and of the Twelfth and Thirteenth avenues, which the said party of the second part hath covenanted and agreed to make, erect and build as aforesaid."
The first fact which challenges attention in this connection is that the city had the right at any time to have the bulkhead erected and the land easterly thereof filled in. The pier, even as extended in 1873, fell far short of reaching the westerly line of Thirteenth avenue. This being the situation the deed of the pier right cannot be construed as conferring any right of access from or over the lands which the city might at its pleasure caused to be filled in. It is obvious, of course, that so long as this territory was not filled in it served the purposes of access to the pier, but that was merely a privilege by sufferance and not a legal right. Thus when the city built the present bulkhead on a line easterly of Thirteenth avenue, as that street appeared upon the map in 1852, it invaded no property rights of the pier owners, as they had no easements over the land under the water within the bulkhead. Nor have the pier owners any right to compensation for damages to the structure, because that might at any time have been rendered worthless as a pier by the filling in of the land as far westerly as Thirteenth avenue. But it does not follow that the ice company has no property rights in the premises whatever. Its alleged right to an easement over the lands sought to be condemned in this proceeding, and its actual right to maintain a pier at the foot of Forty-third street, are two separate things. Conceding, for the purposes of this discussion, that the ice company has now no pier at the foot of Forty-third street, it still retains the right to maintain a pier at that point, and that right cannot be destroyed without compensation. The city is now building, or proposes to build, a new pier extending seven hundred feet westerly into the Hudson river on a line but twenty feet south of the southerly line of Forty-third street extended. This new pier, when erected, will practically destroy the franchise of the ice company to build and maintain a pier at the foot of Forty-third street. While the city clearly has the power to acquire this right or franchise owned by the ice company, the latter is quite as clearly entitled to compensation for being deprived of that right. But neither of these considerations arise in the proceeding at bar, because it relates only to land under water between Forty-third street on the north, Forty-second street on the south, Thirteenth avenue on the west and Twelfth avenue on the east, "together with all wharfage rights, incorporeal hereditaments, terms, easements, emoluments, privileges or other appurtenances of any kind whatsoever appurtenant to the bulkhead along the westerly side of Thirteenth avenue in front of the above-described premises." If it were necessary it could be clearly demonstrated that under the very language of the petition in this proceeding just quoted the ice company would not be entitled to any award in this proceeding because none of its rights are appurtenant to the premises sought to be condemned. The ice company's franchise can only be acquired by the city in a separate proceeding brought for that purpose.
The foregoing facts necessarily lead to the conclusion that the commissioners of appraisal acted correctly in denying to the ice company any award and that the Special Term was right in confirming the report of the commissioners. This view necessitates the reversal of the order of the Appellate Division and the affirmance of the order of the Special Term, with costs in both courts to the appellant. The question certified to us is answered in the negative.
CULLEN, Ch. J., HAIGHT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Order reversed, etc.