Opinion
December Term, 1902.
Theodore De Witt, for the plaintiff.
Theodore Connoly, for the defendant.
The agreement was executed as authorized by law, in lieu of proceedings to acquire the plaintiff's title or rights by eminent domain. There is no claim of fraud or mistake and no demand for a rescission or reformation of the contract. No definite theory seems to be developed or presented for relieving the city from the fulfillment of its contract. The argument of the learned counsel for the city is not that the plaintiff has no property rights or interest to convey, but that the city, under the reservation in its grant to Rutgers, is authorized to appropriate this pier and bulkhead or wharf by establishing a public slip or basin, and that, therefore, it becomes unnecessary at the present time to acquire any other rights or interests she may have.
Under the provisions of the act of 1871, to which reference is made in the statement of facts, the department of docks, in addition to being authorized to acquire title where the city had no title, was authorized to acquire by agreement or condemnation "any rights, terms, easements and privileges" pertaining to any wharf not already owned by the city. If, therefore, the plaintiff had any right, title or interest to convey, it was competent for the city, through its department of docks, to purchase the same. No question of adequacy of consideration is presented or could be raised on this record, and it is not shown that the enforcement of the agreement would be unfair, inequitable or unjust, requiring that a decree for specific performance be withheld. ( Winne v. Winne, 166 N.Y. 263.) If the plaintiff is able to convey or release the right, title and interest which she has agreed to convey or release, it would seem, therefore, that she is entitled to judgment for specific performance.
The first question to be considered is, what has the plaintiff agreed to convey or release? It is not shown that the commissioners of docks were not aware of the reservation in the grant from the city to Rutgers at the time they entered into this agreement with the plaintiff. The agreement indicates that they were aware that the city probably had some title or interest in the premises. It is a reasonable assumption that in the performance of their important duties, aided by the advice of counsel, they became familiar, in a general way at least, with the grants of water rights and privileges previously made by the city. In these circumstances the defendant in making the contract is chargeable with knowledge of the rights and privileges previously reserved by the city itself. The contract in question should, therefore, be construed in this light. Thus construed, it is clear that the agreement on the part of the plaintiff was to sell and convey all outstanding right, title and interest not owned by the city or by the People of the State; and the reasonable construction of the agreement is that she represented that she owned and was able to convey good title to all such outstanding rights, titles and interests. The city, of course, was not chargeable with knowledge as to where the title to these outstanding rights, titles and privileges was vested. The plaintiff was in possession, claiming ownership. The object of this agreement was to acquire the outstanding rights so that the city would have, with the title it then possessed as the owner of the fee, and with the title it had acquired or might thereafter acquire from the State, complete title. It is clear that if there is any outstanding right, title or interest not owned by the city or the People, it is owned by the plaintiff. There was a good consideration for the agreement. She was in possession, claiming title, rights and interests, and her claim was something more than colorable. We might very well end the discussion with a statement of the grounds upon which she could, at least with much plausibility and force, assert title, whether successfully or not; but in view of the importance of the litigation we deem it proper to consider the validity and extent of the plaintiff's title.
The city unquestionably owns the fee of South street; but South street was built by the plaintiff's predecessors in title pursuant to the covenant contained in the grant to Rutgers; and through that grant her predecessors in title and the plaintiff acquired the right to wharfage on that part of the bulkhead opposite her premises, subject only to the reserved right of the city to appropriate part of the bulkhead included within the original grant for the purpose of a public slip or basin. It is contended on the part of the city that this reserved right has never been exercised, and that it is now at liberty, under the plan of dock improvements adopted in 1898, to claim the benefit thereof. That plan does not purport to be an appropriation of a public slip or basin under the reservation contained in the grant to Rutgers. It is a general plan for dock improvements, embracing the entire frontage covered by the grant to Rutgers and more. It contemplates four piers opposite the premises embraced in this original grant and three slips or basins in between. The city's reserved right was to locate, not three public slips or basins, but only one, and at the time the dock improvement of 1898 was adopted there were and are now five piers, with water between, opposite this tract. These five piers were constructed by authority of the city and have been in use for more than fifty years. It appears that ever since 1833, when the city changed its original plan and constructed the second pier opposite Jefferson street, instead of eighty feet westerly of the first pier, which was at the foot of Clinton street, the plaintiff and her predecessors in title have exercised the sole right of collecting wharfage and cranage along the bulkhead opposite the premises now owned by her. It also appears that pier 47 was constructed by the plaintiff's predecessor in title with the consent of the city in 1849, and that they and she have ever since exercised the exclusive right to the use thereof, including collecting wharfage and cranage thereon, and have kept the pier in repair, dredged adjacent thereto by direction of the city authorities, and that the same has been continuously taxed to them as real estate and they have paid the taxes thereon. The city having directed or consented to the construction of these piers, and having acquiesced in their construction and use for fifty years, it is not competent for it now to make an appropriation of part or all of this bulkhead for a public slip or basin. It should be deemed to have exercised its reserved rights in determining upon the first plan of dock improvements made in 1831, by which no part of the bulkhead adjacent to the plaintiff's premises was attempted to be appropriated. A reserved right is limited by the rule of reasonable enjoyment. ( Grafton v. Moir, 130 N.Y. 465.) An exception or reservation must be construed most favorably to the grantee. ( Blackman v. Striker, 142 N.Y. 555.) It would be unreasonable to construe the exception or reservation as giving the grantor the right to appropriate the entire bulkhead opposite the two blocks for a public slip or basin, and would render the same void on the ground of repugnancy. ( Schermerhorn v. Negus, 1 Den. 448; Craig v. Wells, 11 N.Y. 315; Jones v. Port Huron E. T. Co., 171 Ill. 502; De Peyster v. Michael, 6 N.Y. 467; Greene v. Greene, 125 id. 506, 512.)
If the city bases its claim on an exception from the grant, this necessarily implies that some estate was granted, for otherwise the exception would be repugnant to the grant. ( Craig v. Wells, supra.) Construed as an exception, the exception would also be void for uncertainty, for it covered nothing then in existence or capable of being identified and omitted from the conveyance. ( Thompson v. Gregory, 4 Johns. 81; Flaherty v. Cary, 62 App. Div. 116, and cases cited.) This case is distinguishable from Consolidated Ice Company v. Mayor ( 53 App. Div. 260; 166 N.Y. 92), in that there the street excepted from the grant had been laid out upon maps and was clearly defined and capable of being located, whereas, here the public slip or basin had not been laid out. It will be seen from the statement of facts that the city did not require the plaintiff's predecessor in title to construct South street until 1832, which was after it had determined upon the erection of the two piers in 1831. Whatever election the city desired to make should have been made before requiring these improvements. The abutting owners were justified in assuming, therefore, that the action of the city in 1831 was an appropriation under this reservation. That seems to have been the practical construction placed upon the grant and acquiesced in by all the parties ever since. The city contends that the action of Bool's executors in leasing the abutting property on February 1, 1841, with a proviso in the lease for a reduction in the rent in case the city should take the bulkhead for public purposes, is inconsistent with this theory. The city was not a party to that lease. The admission should not be deemed an estoppel as against the executors. It does not show that the executors recognized the right of the city, but it was rather a provision inserted presumably to satisfy the tenants. It is not reasonable to suppose that it was within the contemplation of the parties when pier 47 was constructed in 1849, that it was subject to removal at any time by the city's electing to locate a public slip or basin there. The fair and reasonable construction of this reservation required that the city should make the appropriation which it claimed the right to make thereunder, before requiring the abutting owners to construct the wharf and piers. Such seems to have been its understanding of its rights at the time. Having directed these improvements and authorized the construction of pier 47, it should be deemed to have waived or abandoned any right to locate a public slip or basin at that point. ( Snell v. Levitt, 110 N.Y. 595; Cartwright v. Maplesden, 53 id. 622; Crocker v. Crocker, 5 Hun, 587.)
Subject to the reservation, though in the form of a covenant, the deed to Rutgers conveyed an indefeasible estate of inheritance in the bulkhead, street or wharf, and the proceedings for the construction of the pier vested a like estate therein which neither the city nor the State, although owning the fee in remainder, can take from the proprietors without compensation. ( Bedlow v. Stillwell, 158 N.Y. 292, and cases cited; Langdon v. Mayor, 93 id. 129.)
It appears that the outer end of pier 47, embracing more than one-half of the entire pier, was constructed on land owned by the State, being beyond 400 feet from low-water mark. The sinking fund ordinance did not apply at least to this part of the grant, for its operation was limited to grants of land owned by the city, and the common council had the right under chapter 86 of the Revised Laws of 1813 to give, not only the city's consent to the construction of this part of the pier, but the consent of the State as well. ( Langdon v. Mayor, 93 N.Y. 129; Williams v. Mayor, etc., 105 id. 419; Bedlow v. N.Y. Floating Dry Dock Co., 112 id. 263.) It was constructed and used under a claim of right for more than twenty years before the city obtained from the State title to the land beyond the 400-foot line. This gave the plaintiff a right by prescription to maintain this part of the pier and to access thereto over the waters of the State. ( Bedlow v. N.Y. Floating Dry Dock Co., supra; Bedlow v. Stillwell, 158 N.Y. 292, and cases cited.)
Moreover, the sinking fund ordinance did not apply to grants for the construction of piers by abutting proprietors, but only in case of their refusal to construct piers when required. Such proprietors had a vested right of pre-emption, under the statute, to construct and acquire all piers that might thereafter be ordered or authorized on that part of the wharf in which they had such interest ( Bedlow v. N.Y. Floating Dry Dock Co., supra); but the common council was first required to determine that the public interests would be subserved by the construction of the pier which, it has been seen, was done in this case. This having been determined, and construction by the abutting owners having been consented to by the common council, they had the right to build and to own and hold the pier and all rights necessary to its enjoyment. ( Mayor v. Hart, 95 N.Y. 443; Williams v. Mayor, 105 id. 419; Bedlow v. N.Y. Floating Dry Dock Co., 112 id. 263; Bedlow v. Stillwell, supra.) If the abutting proprietors refused to construct a pier, then a grant might be made to others, and the sinking fund ordinance would doubtless apply.
The case of Mayor v. N.Y.C. H.R.R.R. Co. (69 Hun, 324; 147 N.Y. 710), cited by the defendant to the contrary, is not an authority in its favor. The pier in that case was erected by one having a grant, but who was not an abutting owner and had no right by prescription. As has been seen, the consent of the common council was necessary to the erection of piers, even under grants made by the city expressly for that purpose as provided by the sinking fund ordinance. If the sinking fund ordinance did apply to the construction of this pier, the consent of the common council should be regarded as having been given in conformity to and compliance with the sinking fund ordinance, and not as a recognition of any superior title in the city. If a grant from the commissioners of the sinking fund was necessary, it will be presumed to have been made after such a great lapse of time, and the plaintiff's right to this pier is good by prescription. ( Lewis v. N.Y. H.R.R. Co., 162 N.Y. 202, 223.)
Part of the plaintiff's title came by will and part by conveyances, but in neither is her title made subject to the Rutgers grant. It thus appears that she acquired her title, not in recognition of the city's right to make any further appropriation under the reservation contained in the grant to Rutgers. She came into title and has exercised her rights on the assumption that whatever rights the city reserved had been previously exercised; which clearly distinguishes this from the case of Mayor v. Law (6 N Y Supp. 628; 125 N.Y. 380, 394).
It thus appears, we think, that the plaintiff had substantial property rights and all the title that it was within the contemplation of the parties that she should convey.
It follows, therefore, that the plaintiff should have judgment on the submission for the specific performance of the contract, with costs, as demanded in the submission.
PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred; VAN BRUNT, P.J., dissented.
Judgment ordered for plaintiff, with costs.