Opinion
Argued December 3, 1896
Decided January 19, 1897
E. Countryman for appellant. R.A. Parmenter for respondents.
In determining the scope and purpose of the dedication of Canal street, as a public street, we may refer to the acts and declarations of the donors and to those surrounding circumstances, which throw light upon the subject and, in that way, discover the intention. ( Morgan v. R.R. Co., 96 U.S. 723.) If we can gather the intention that that street should not extend eastwardly beyond its easterly terminus, as laid down on the Roberts map, then it must control. Undoubtedly, it is the general rule of law, that a public street leading to navigable waters would keep even pace with the extension of the land, so as to preserve an unbroken union between the easement on land and that on such navigable waters; whether the change in the land be due to natural causes, or to the voluntary act of the owner of the land. ( People v. Lambier, 5 Denio, 9.) That general rule applies to all cases of a public right acquired by dedication, where there is nothing in the facts and circumstances connected with the dedication to show that a restriction was intended and imposed, which would preclude the public from claiming a right of access to the river over the highway. It is usually the case that the gift to the public of a street ending at the shore of a navigable river is for the purpose of providing the means of access to the waters of the river; but the present case is one where, as it seems to me, such an intention did not exist, when the village of West Troy was planned and mapped out by the proprietors of the land, and where, indeed, it seems to be distinctly negatived by their acts. When the Bleecker farm was mapped into streets and lots to constitute the future village of West Troy, the proprietors, in causing the partition between themselves of the lots, expressly reserved to, and vested in their trustees, who held the legal title, an exclusive right of ferriage between their shore and the opposite city of Troy. The ferry then existed and was at the foot of Canal street, as laid down upon the map, and in the partitioning of the village lots the trustees retained the ferry property and reserved the adjoining lot for the very purpose of maintaining the ferry. Thus, it was in contemplation at the time, that the ferry, which had for years been operated at that particular point, should remain and be operated as such by the trustees and should constitute pro tanto a barrier to the public access to the waters of the river. It is to be observed that the trustees held the title to the adjoining lands under the waters of the Hudson river by grant from the state and in every case of a conveyance, in the partitioning of the property, of lots bordering upon the shore of the river, the grant included the land under water in front of the lots. At the time of the completion of the partition of the property as mapped out, the trustees remained the proprietors of the land under water in the river in front of the foot of Canal street, as well as of the next adjoining lot which they had reserved to be used in connection with their ferry. I think that upon reflection the reservation and agreements in the partition deed will seem to demonstrate that the scope of the dedication of Canal street, as a street, was to provide a means of access to the ferry, which was to be maintained at its foot, and not to make of it a public highway reaching to the navigable waters of the river. The intention was to preserve the ferry that was there and to deprive every beneficiary, in this scheme for the creation of a municipality, of any right of ferriage, or of ferry landings, and to compel them to use the established ferry. The public could enjoy the street for the purpose apparently intended of reaching the established ferry and the design of the street for that purpose is the more reasonable inference. The features in this case of the ferry at the foot of the street and of the reservation to the trustees of the exclusive right to operate it, differentiate it from the other cases to which our attention has been called by the appellant. In the Lambier case ( supra), after Warren street had been laid out and opened from Court street in Brooklyn to the East river, an act of the legislature, passed in 1836, authorized the several persons therein named to construct wharves, bulkheads, piers, etc., in the East river in front of their lands in the city of Brooklyn. One of the persons named in the act, and who owned the piece of land through which Warren street passed, erected a bulkhead in the river in front of his land, including that covered by the street, and filled up the intervening space with earth, so as to transfer the shore of the river to the bulkhead. It was held that the design of the act of 1836 was to confer privileges on the owners of the land adjoining the East river, but not to destroy the right of the public to reach its waters through Warren, or any other, street, which then led to its shore. It was observed in the opinion, that while the act authorized piers and bulkheads to be erected and the bed of the river to be filled up in front of the lands of the persons named, that that could hardly be understood to include land over which a perpetual right of way existed in favor of the public, although the fee might be in such owners. That case differs, therefore, in essential facts, as the several cases to which we are referred in the New Jersey courts differ, from the case at bar; where it cannot fairly be inferred from the acts and declarations of the proprietors of the Bleecker farm that Canal street should afford to the public a means of direct access to the navigable waters of the Hudson river. The intention that Canal street at its easterly point should terminate at the ferry grounds is further made manifest by the subsequent conveyance by the trustees, in 1835 and 1836, to Cushman and Wiswall of exclusive ferry rights and privileges, "and the right and privilege of approach to said ferry as now used and vested in the said trustees," together with the lot adjoining the foot of Canal street on the south, which the trustees had retained for use in connection with the ferry. As an act on the part of those who held the legal title and acted as trustees for the land proprietors, it very clearly indicated their understanding that the public had acquired no rights in Canal street, as a highway, beyond where the ferry rights commenced. I think we may assume, too, that such has been the understanding of the defendant, for whose benefit the dedication was made. Since the time when Cushman and Wiswall and their successors reclaimed the land under water in front of the foot of Canal street and made it useful and valuable for their ferry purposes and inclosed it, as far back as 1865, no attempt has been made by the defendant to interfere with the ferry properties, or to exercise any authority over the reclaimed land, until the proceedings which resulted in the present action. This acquiescence through such a long period of time is a very significant circumstance. It seems to me that the finding of the trial court, that the owners of the Bleecker farm did not intend to dedicate to the public Canal street any further east than is indicated on the Roberts map and that they did not intend to interfere with, or encroach upon, the existing ferry, is supported by every reasonable inference which can be drawn from their acts and declarations.
I advise, therefore, that the judgment appealed from should be affirmed.
All concur, except ANDREWS, Ch. J., not voting, and BARTLETT, J., dissenting.
Judgment affirmed.