Opinion
June, 1896.
Hyland Zabriskie, for plaintiffs.
Smith Lent, for defendants.
By the common law of England the title to land under navigable waters was vested in the king as the embodiment of sovereign power, and upon the separation from the mother country at the time of the American revolution the people succeeded to the prerogative rights of the crown, and became vested with the title to the beds of navigable waters upon the theory that the people are the successors to the sovereignty of the king.
By virtue of this underlying principle the title to the land under the waters of the Hudson river became vested in the people of the State of New York upon the organization of the State government in 1777. Such title continued unlimited and unrestricted until July, 1788, when the State adopted the Constitution of the United States, which contained this provision: "Congress shall have power * * * to regulate commerce with foreign nations, and among the several States and with the Indian tribes." The term commerce as employed in that instrument embraced navigation, and so Congress became vested with the exclusive right to regulate commerce, navigation, etc. Gibbons v. Ogden, 9 Wheat. 189.
Then the condition was this: The people of the State continued to own the land under the waters of the Hudson river, and Congress possessed the power to regulate the commerce and navigation thereon. The State could not authorize any impediment to the navigation of the river, nor authorize an impairment or diminution of the rights of the public therein.
The State could make grants of land under the waters of the river bed, but they were and are at all times subject and subordinate to the paramount right of congress to regulate the use of the water flowing over the granted land.
Wharves and docks are essential to the facilitation of commerce, and they may be constructed by riparian proprietors and grantees of land under water, but if they be so constructed as to impede navigation, the paramount rights of the public are invaded, and a nuisance is created which may be enjoined by the courts at the suit of any person who sustains special injury thereby. Dutton v. Strong, 1 Black, 32.
The power and authority of Congress to regulate the construction of wharves and piers in navigable waters lay inert and unexerted until September, 1890, when a law was enacted which among other things provided: "That it shall not be lawful to build any wharf, pier, etc., or structure of any kind * * * in any navigable waters of the United States * * * without the permission of the secretary of war, in any port, roadstead, haven, navigable water or other water of the United States, in such manner as shall obstruct or impair navigation, commerce or of said waters" (§ 7).
Section 10 of that act provides: "That the creation of any obstruction not affirmatively authorized by law to the navigable capacity of any waters in respect of which the United States has jurisdiction is hereby prohibited."
The light afforded by the foregoing principles will aid in the examination and solution of the important questions involved in this action. The plaintiffs and the defendants are both owners of a dock at Sing Sing, and their docks both extend into the Hudson river an equal distance. The dock of the plaintiffs is south of that of the defendants, and there is a slip between them. Each of the parties have a grant from the State of New York of the land under the waters of the river which extends westerly beyond the end of their docks, which are both built upon the land so granted. There is a stream of water called the Kill brook, which comes in from the east and empties into the Hudson river immediately north of the defendants' dock. At times that brook washes down earth and sediment which rest at the defendants' dock and shoals the water. For the purpose of arresting that sediment the defendants desire to prolong their dock by the construction of a crib upon the westerly end thereof, and it is to restrain the building of that structure that this action was commenced. The plaintiffs are the owners of a steamboat, which they run between Sing Sing and New York for the transportation of freight and passengers. In bringing their boat to their own dock on her return trip from New York, it is generally necessary to run her bow in front of the defendants' dock, as the slip between them is only thirty-six feet wide. It would be very difficult at all times, and impossible at many times, to bring the plaintiffs' boat to her dock without running her bow about fifty feet in front of the dock of the defendants.
It is, therefore, manifest that the plaintiffs will be especially injured by the extension of the defendants' dock further into the river.
The Hudson river is one of the navigable streams of the United States, and Congress has the paramount right to control its use under the commercial clause of the Constitution. In the absence of harbor lines and of rules to regulate the construction of wharves, the defendants, as riparian proprietors, could erect a dock; but such right terminated at the point of navigability, and if they extend the structure beyond that line, so as to obstruct the navigation of the river then they create a public nuisance. As the plaintiffs will be especially injured by the crib which the defendants propose to construct, they may restrain its construction. Dutton v. Strong, 1 Black, 32.
The waters in front of the defendants' dock are public waters, and the plaintiffs have the right in common with all others to cross them in the ordinary course of navigation, and especially for the purpose of bringing their boat to their own dock. That right will be defeated if the defendants are permitted to construct their crib. The defendants claim the right to erect the crib in front of their dock by virtue of their ownership of the adjacent upland, and of the land under water in point where they propose to place it. In fact, they stand alone upon those rights. We have seen already, however, that their rights as such owners are much restricted and limited by the paramount rights of the public to use the waters of the river, and no elaboration of that limitation is necessary.
Moreover, the construction of this crib is prohibited by the act of Congress to which allusion has already been made, and as that legislation is paramount and controlling, it seems unnecessary to pursue the subject further.
The plaintiffs must have judgment for the relief demanded in the complaint, with costs, but no additional allowance.
Judgment for plaintiffs, with costs.