Opinion
Argued March 25th, 1870
Decided June 22d 1870
Stephen P. Nash, for the appellant.
Benjamin D. Silliman, for the respondent.
If the plaintiff had the right to fasten his vessel to the wharf in the possession of the defendants and unload the cargo thereon, and transport it from thence in vehicles to the street in the rear thereof, he was entitled to recover, and the judge erred in refusing to submit the case to the jury and dismissing the complaint. The ruling of the judge cannot be sustained upon the ground that the plaintiff did not tender or offer to pay the customary wharfage, for the reason that the defendant put the refusal to permit him to unload the cargo upon the ground that the wharf was its private property, and that the plaintiff had no right to discharge his cargo thereon without its permission. The question to be determined is, whether the wharf was the private property of the defendant, from which, as such, it had the right to exclude the public from any use, either with or without the payment of wharfage, or whether the public had the right to its use for loading and unloading vessels. The plaintiff entirely failed to show any dedication of the wharf to public use either by the defendant or any of its predecessors in the title. The only foundation of right, that can be relied upon by the plaintiff to use the wharf, arises from the fact of its construction in the channel of the East river, upon the east or Brooklyn side, below low water mark, where the public had, before the filling in for the purpose of the wharfage, enjoyed the right of navigation. There was no pretence that the structures of the defendant constituted any obstruction to the free navigation of the river. These structures were wholly within the water line of the city of Brooklyn, as established by the legislature in 1836, Laws of that year, chapter 484. The defendant showed a perfect title to the upland to high water mark, adjacent to the wharf, and also to the land between high and low water mark. The public never had any right of landing upon these lands of the defendant, or of crossing or in any way using the same for any purpose. The public right upon the Brooklyn side was confined to that of navigating the river. How the right of navigation should confer upon the plaintiff any right to the use of these lands, it is difficult to discover. But the wharf is constructed in the channel below low water mark. The title to this land was in the State, and the defendant clearly had no right to fill in or erect any structures thereon as against the State without its consent, and the State could, if they were so constructed, compel their removal by the defendant.
If the State sees fit to permit the structures to remain, what right has the plaintiff to complain? He is in no respect injured thereby. He can enjoy his right to navigate the river in as free and ample a manner as before. He had no right to unload or load his vessels at this place before, and has none now. He is in no way injuriously affected by the structures. There was no express trust attached to the lands between high and low water mark on the Brooklyn side of the river, when granted to the city of New York, in behalf of the public. I see no substantial ground upon which any such trust can be implied. There was no such trust attached thereto in the grant of these lands by the city to those under whom the defendant claims. It does not appear that the acts of 1848 and of 1850, chapters 156 and 313, giving to the several owners of real estate fronting on the water in the city of Brooklyn, their heirs, c., the right to erect and maintain bulkheads, c., and to fill in the same on the lands under water in front of their lands respectively, so far into the East river as the permanent water line established by law for the construction of bulkheads, were passed by a two-third vote. It must be assumed, therefore, that they were not so passed. (Laws, 1842, chap. 306.) It is argued from this, by the counsel for the plaintiff, that it must be assumed that the legislature only intended, by the acts giving to the owners the right of erecting bulkheads, c., to confer a franchise upon such owners to construct wharves, subject to the use of the public for commercial purposes, with the right of exacting the payment of the customary charges from those using them, and not to give an absolute title to such owner to the structures and the lands acquired by such filling in. The answer to this is, that there is nothing in the acts showing an intention to confer a franchise or a title subject to such rights in the public. If such had been the intention, the legislature would so have plainly declared, as this would have conferred new rights upon the public, not only upon the land gained by the shore owner by the filling in, but also upon the land upon the bank to which he already had title, as the public in the present case could not enjoy the right claimed without the use of a portion of the latter. If there had been an intention to confer the right claimed upon the public, the right of erecting the structures and filling in would have been given upon the condition that the public should not only have the right to use the structures and the land acquired by the filling, but also the shore lands of the owners to an extent sufficient to make the right available. The absence of any provision conferring any right upon the public to use any portion of the structures or land made by filling in, or that upon the margin, is conclusive that the legislature did not intend to confer any such right. It is argued by the counsel for the appellant, that if the acts are construed so as to give an absolute title to the structures erected and the land made by filling, pursuant to the act, they are in conflict with section nine, article one of the Constitution of the State. That section provides that the assent of two-thirds of the members elected to each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes. The fee of the land in the channel of the river was in the State, prior to the passage of the acts in question, and the position of the counsel is, that if, when filled in, pursuant to these acts, the fee vested in the shore owner, it was an appropriation of the land to private use. This question has been ably and elaborately discussed by the counsel upon both sides. But a decision of the question is not necessary in this case. If the acts are void, it is the right of the State, not that of the plaintiff, that is violated. If the respondent is in possession of land, the fee of which is in the State, it has its remedy. This gives the plaintiff no right of entry upon such land for any purpose. A full discussion of the difference as to titles of shore owners upon the New York and Brooklyn sides of the river, will be found in the opinion of the Supreme Court in Wetmore v. The Atlantic White Lead Co. (37 Barb., 70). The judgment appealed from must be affirmed with costs.
All concur for affirmance, except LOTT, J., who does not sit.
Judgment affirmed.