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App. Div.] Second Department, October, 1911. city of all lands under water described in the charter, and the Cominissioners of the Land Office had no further power to make grants in fee thereof or otherwise to private persons inconsistent with the provisions of said sections. Hence, a dock company owning piers extending into the East river cannot

claim title in fee to the lands beneath the waters embraced by said piers under a subsequent grant from the State made in 1902; and commissioners appointed in proceedings to condeinn lands for constructing a subway under the waters of the East river should not award damages to the pier owners on the theory that they owned the fee of the lands

beneath the slip under such grant. As the charter in express terms grants the city of New York lands under

water and below the high-water mark embraced by the projected boundary lines of “any street intersecting the shore line and which street is in public use or which may be hereafter opened for public use," the grant embraces the lands between the projected lines of such street although portions thereof have not been actually opened for

public use. In any event, where the commissioners in the condemnation proceedings

found as a fact that a street had been opened to the bulkhead line established by law and that the fee of the dock owners in that street was subject to street uses to the bulkhead line, so that section 83 of the city charter applied and the city became vested with the fee of the lands under water between the boundaries of the projected street, it was inconsistent for them to allow the dock owners compensation on the

theory that they had a fee. A subway constructed under the East river for the carriage of passengers

between boroughs of the city of New York is constructed for “navigation, intercourse and commerce” within the meaning of section 83 of the city charter. The word “commerce" embraces carriage of passengers for hire. Moreover, even if the construction of such subway could not be held to

be within the purposes of the grant made by section 83 of the charter, the objection is available only to the State and is not open to dock owners. The Commissioners of the Land Office had no power to grant

a fee to such owners where the fee had already been granted to the city. The city, however, owning the fee to the lands under water between the

lines of the projected streets cannot use those lands in such manner as to impair or damage the rights of the pier owners unless compensation for such damage be made.

APPEAL by the Public Service Commission for the First District of the State of New York, as successor to the Board of Rapid Transit Railroad Commissioners for the City of New York, and The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th

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Second Department, October, 1911.

[Vol. 146. day of September, 1909, confirming the report of commissioners of appraisal herein.

Francis J. Byrne [Theodore Connoly and Archibald R. Watson with him on the brief], for the appellant, The City of New York.

Charles E. Hotchkiss, for the respondents.

CARR, J.:

This is an appeal from an order made at Special Term in Kings county which confirmed a report of commissioners in condemnation proceedings. The proceedings were begun by the rapid transit commissioners, appointed under chapter 4 of the Laws of 1891, as amended, to acquire such rights in certain lands in the borough of Brooklyn, and land under water abutting the borough of Brooklyn, as were necessary for the construction of a branch of the municipal subway system, which, crossing under the bed of the East river, entered the borough of Brooklyn at the foot of Joralemon street in said borough, thereby connecting Brooklyn with the subway system in Manhattan. An amended map was filed to define and explain the precise locations in which these necessary rights were sought to be obtained. On this map certain parcels of water-front property are shown and numbered from 1 to 10 inclusive, of all of which the New York Dock Company, a corporation and a party to these proceedings, claimed an ownership in fee. By written stipulation between the petitioners and the New York Dock Company, the petitioners entered into immediate possession of certain of the parcels shown on said map for the purpose of constructing the subway in question. As a consequence of this entry into immediate possession and the carrying on of the work of construction, very considerable damage was done to the property and business of the New York Dock Company which was temporary in its nature. The commissioners of estimate took proofs of the elements and extent of this temporary damage, as well as those offered to prove damages to the dock company resulting from the permanent occupation by the subway as constructed. In making their award the commissioners did not state separately the items of temporary and

App. Div.] Second Department, October, 1911. permanent damage, but awarded a gross sum of $162,500 to the New York Dock Company in compensation for both temporary and permanent damages. The commissioners stated in their report that they found that “The New York Dock Company was the owner in fee of all of the lots, pieces and parcels of land and premises shown on the amended map adopted by the Board of Rapid Transit Railroad Commissioners for The City of New York on June 15, 1905, and thereon designated by the parcel Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, subject, however, to the public easement for street purposes vested in The City of New York, in that portion of said premises known as Joralemon street, being that portion of said street between the westerly side of Furman street and the bulkhead line or line of solid filling established by chapter 484 of the Laws of 1836, as said Joralemon street was laid out and opened by Commissioners of Estimate duly appointed, and whose report was confirmed by the Supreme Court, Kings County, on August 4, 1812."

It is urged on this appeal by the legal successors to the petitioners that, in making an award on the theory that the New York Dock Company owned a fee in all the parcels so enumerated in their report, the commissioners proceeded upon an erroneous theory, and that, therefore, their determination as to damages must be reversed.

The record before this court is quite voluminous, but the real point of controversy, considering the only question raised on this appeal, may be stated and considered within reasonably brief limits. The substantial question of title is confined to the lands under water at the foot of Joralemon street which underlie the slip or basin between two piers owned by the dock company and known as piers 17 and 18. These lands are claimed by the dock company in fee, while the petitioners contend that that portion of them which has been taken for, and is now occupied by, the constructed subway was in fact owned in fee by the city of New York. The claim of the dock company is based upon a grant made by the State in 1902 and upon a claim of title arising out of circumstances existing before the grant of 1902. These circumstances will be examined first.

There is no question that the dock company was the owner

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Second Department, October, 1911.

(Vol. 146. of piers 17 and 18 and that these piers were built and maintained in pursuance of law. Prior to 1902 there was no grant from the State to the lands under water in the slip between these piers, from the bulkhead line out into the bed of the East river. Whatever rights the dock company had in these lands were such as, under common-law principles, were incident and appurtenant to the ownership of the piers above described. Under these principles, the owner of the piers had a right of reasonable access over the waters covering the surrounding lands, though title to such lands was in the State, and the owner had likewise a right and a positive duty, imposed by statute, to keep the slip between its piers so dredged out, when necessary, as to permit the ordinary use thereof by commerce. (Langdon v. Mayor, etc., 93 N. Y. 129; White v. Nassau Trust Co., 168 id. 149.) The possession and enjoyment of these rights did not create necessarily any title in fee in the lands alongside or between the piers. Title in fee to such lands could be acquired only by grant, and not as a mere incident or appurtenance to the ownership of the piers. This brings us to a consideration of such rights as the dock company acquired by grant from the State in 1902. A title in fee to the land under water here in controversy was granted apparently by the State to the dock company, but the express terms of said grant provided that it was made “subject to such right, title and interest as The City of New York has under the provisions of its charter to lands under water in front of projected streets, if any such there be, and such right, title and interest, if any, are excepted from this grant and reserved to said city.” The provisions of the charter of the city of New York covering this subject matter are set forth in sections 83 to 88 thereof, inclusive. (Laws of 1901, chap. 466, amdg. Laws of 1997, chap. 378.) Section 83 provides as follows: "To the end that The City of New York, as herein constituted, may be enabled to make needful provisions for the navigation, intercourse and commerce of the city and adequately to develop and secure the same now and in the future, the said city shall have the control as herein and in this act provided, of the water front of the entire city, subject, however, to the rights of private owners of property, and also power to establish, construct, acquire, own, App. Div.] Second Department, October, 1911. maintain and enjoy all ferries, public wharves, docks, piers, bulkheads, basins, slips, streets, approaches and spaces, and all other public structures, adjuncts and facilities necessary or proper for the navigation, intercourse and commerce, foreign and domestic, of the city. To these ends, in addition to all other grants, there is hereby granted in fee to the said city of New York, as herein constituted, in all the public streams, rivers, sounds, bays and waters of all descriptions at any and all places within said city or adjoining the limits of said city as herein constituted, all and singular the property, estate, right, title and interest of the People of the State of New York, in, to, of, and concerning such lands and soil covered by water, as are embraced within the projected boundary lines of any street intersecting the shore line, and which street is in public use or which may be hereafter opened for public use, extending from high-water mark out into said streams, rivers, sounds, bays and waters so far (any limits in existing grants to the contrary) as the said city shall now or at any time hereafter in the opinion of its board of aldermen or department of docks and ferries require the same for ferries, public wharves, docks, piers, bulkheads, basins, slips, or other public structures, adjuncts and facilities for navigation and commerce, including the right for such purposes to reclaim such lands from said waters, and including also all riparian rights, and all rents, issues and profits of the premises herein granted. The Commissioners of the Land Office shall from time to time, convey or patent the lands herein granted to the city for said purposes as and whenever required by the board of docks.” It will be noted that this section, after declaring a general purpose for “needful provisions for the navigation, intercourse and commerce of the city,” makes a specific grant to the city of New York of all lands under water then owned by the State in language as follows: “ To these ends, in addition to all other grants, there is hereby granted in fee to the said city of New York, as herein constituted, in all the public streams, rivers, sounds, bays and waters of all descriptions at any and all places within said city or adjoining the limits of said city as herein constituted, all and singular the property, estate, right, title and interest of the People of the State of New York, in, to, of, and concerning such lands and

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