Opinion
Argued February 27, 1901
Decided April 16, 1901
John Whalen, Corporation Counsel ( Charles Blandy of counsel), for appellant.
John C. Davies, Attorney-General, Albert B. Boardman and Henry L. Stimson for respondents.
The properties of the defendant, The Astoria Light, Heat and Power Company, are located at Astoria, Long Island. The predecessors in title of the company obtained from the state certain grants of land under water some years before the applications involved in the present proceeding.
In 1890 the Federal government, through the war department, determined to open Berrian creek, which extends from the easterly portion of the company's property to the East river. This creek flows along the southerly side of Berrian island, owned by the company, and the northerly side of other property of the company lying further south. This laying out of a new bulkhead line cut off the company from a certain portion of the land under water embraced in the former grants.
In march and May, 1899, the company applied to the land commissioners for certain parcels of land under water lying in front of the uplands owned by the company. The present application was made for the purpose of rounding out the strip of land previously granted and conforming the company's land under water to the changes in the pier and bulkhead lines.
As required by section eighty-six of the Greater New York charter, notice of this application was given to the board of docks of the city of New York. At a meeting of that board held on the 16th day of June, 1899, the following resolution was adopted: "Resolved, that the secretary be and hereby is directed to notify the Commissioners of the Land Office that this department has examined into the application of The Astoria Light, Heat and Power Company for grants of land under water at Berrian Creek and Berrian Island, Borough of Queens, and finds that the granting of the same will conflict with the rights of the city under the provisions of Chapter 378 of the Laws of 1897, and would be otherwise injurious to the public interests of the City of New York, and that, therefore, the board protests against the granting of said application."
No hearing was given before the board of docks to any of the interested parties, and the board rests satisfied with stating that the granting of these applications would conflict with the rights of the city under the charter, which is the statute cited, and would be otherwise injurious to the public interests of the city.
On June 22d 1899, a public hearing was had before the standing committee of the commissioners of the land office, and the board of docks was there represented by counsel. This committee subsequently reported that the land commissioners were authorized to make the grants applied for, notwithstanding the protests of the board of docks. On December 7th, 1899, the land commissioners made the grants and patents were duly issued.
The material portion of section eighty-six of the Greater New York charter, the construction of which is involved in this proceeding, reads as follows: "If application be made to the commissioners of the land office by the riparian proprietor for a grant of soil or land under water within the city of New York, as herein constituted, said commissioners shall give notice thereof to the board of docks of the city, which shall examine into such application and determine whether the granting of the same will conflict with the rights of the city under this act or be otherwise injurious to the public interests of the said city, and shall report their conclusions to said commissioners who shall insert such terms and conditions in the grant recommended by the board of docks as will protect the public interests of the city in respect to navigation and commerce. The validity of any such grant or patent may be judicially determined in an action brought by and in the name of the city."
At the hearing before the standing committee the board of docks gave no evidence of the facts upon which it determined that the granting of these applications would conflict with the rights and public interests of the city. Special attention was called to this omission before the hearing was closed, and the learned counsel for the board of docks stated that his client had not put his office in possession of any of the details going to make up the determination. He further stated it was his opinion that as soon as the board of docks made known to the land commissioners it had reached a determination in the language of section eighty-six, it was not material to inquire what the considerations were that led to it.
The theory of the learned counsel seems to be that the board of docks is given absolute power in the premises to determine whether an application of a riparian owner for a grant of land under water within the limits of the city of New York shall be granted or not; that the bare statement in the protest filed by the board that the grant would conflict with the rights and public interests of the city, in the language of section eighty-six, is a complete bar to granting the application.
The case of People ex rel. City of New York v. Woodruff ( 39 App. Div. 123; affirmed in 159 N.Y. 536, on opinion below), which involved the application of one Whittemore and others for grants of land under water, is referred to by both parties in this proceeding as an authority in point. In that case the question was whether or not, as matter of legal right, the city was entitled to require the commissioners of the land office to insert in the grant or patent to the applicants the terms and conditions proposed by the board of docks. These conditions or covenants, in substance, provided that in case the city of New York in the future should desire to improve the water front of the city, the proper department should have the right to enter upon the lands granted after giving notice of its intention so to do, and that the grantees would surrender without compensation the premises, with improvements thereon, or so much thereof as may or shall lie within the lines of any exterior street, wharf or place determined upon by the board of docks and approved by the commissioners of the sinking fund. Mr. Justice MERWIN, who wrote the opinion of the Appellate Division in the case cited and which was adopted by this court, stated: "It is argued by the relator that the terms and conditions submitted by the board of docks are reasonable. The commissioners thought otherwise, and I am not persuaded that their conclusions in this respect are erroneous. The city apparently took the position that, although they did not care to take and improve the property for the public benefit, still they were not willing that the riparian owner, the only other party that had any right to obtain it, should do so, except at the peril of losing the benefit of his improvements at any time the city should desire to improve in its own way the water front. It is difficult to see how the protection `of the public interests of the city in respect to navigation and commerce' would require such a burden to be placed upon an individual enterprise in a field the city cared not to enter."
The right to have inserted these conditions in the grant was the only question before the court. Judge MERWIN said on this point: "The present application assumes that the commissioners are in a position to give a grant of some kind, and the only question is whether they are bound to insert the proposed terms and conditions. The validity of the grant, if one is made, we are not called on to consider in this proceeding. * * * The statute evidently contemplates that there may be applications, in regard to which the board of docks will determine and so report, that the granting of the same will conflict with the rights of the city, or be otherwise injurious to its public interests. Whether, in such a case, the commissioners have any power to make a grant need not be here considered, for no such report was made, and this is not an action for an injunction."
The question now presented for consideration is whether, under section eighty-six of the charter, the commissioners of the land office have the power to determine, notwithstanding the protest of the board of docks, that the application of a riparian owner shall be granted.
It was conceded by both counsel on the argument that the quoted section of the charter does not clearly express the precise powers conferred upon the board of docks in the premises.
If it was the intention of the legislature to deprive the commissioners of the land office of the power to make grants of land under water to riparian owners in the city of New York, unless the board of docks consented, it should have been expressed in clear and unmistakable language. No such intention is disclosed in the section as it now reads, and it remains to determine the powers of the board of docks in the premises.
The first duty of the board of docks, after receiving notice of the application, is to "examine into such application and determine whether the granting of the same will conflict with the rights of the city under this act, or be otherwise injurious to the public interests of the said city." It then becomes its duty to report its "conclusions to the commissioners, who shall insert such terms and conditions in the grant recommended by the board of docks as will protect the public interests of the city in respect to navigation and commerce."
It thus appears that the board of docks is first to investigate as to whether the rights and interests of the city are injuriously affected and then to report their conclusions to the said commissioners, who shall insert such terms and conditions in the grant as are recommended by the board of docks as will protect the public interests of the city, not in any vague or general way, but "in respect to navigation and commerce." Following the literal reading of the section, no power is conferred upon the board of docks to determine whether a grant shall issue, or even to recommend that no grant shall issue, but the board is confined to recommending the insertion in the grant of such terms and conditions as will protect the public interests of the city in respect to navigation and commerce. This section is imperfectly punctuated. The words "and shall report their conclusions to said commissioners who shall insert such terms and conditions in the grant recommended by the board of docks," etc., are printed without punctuation of any kind. It is evident that there should be a comma after the word "grant" and also after the word "docks," making a parenthesis of the words "recommended by the board of docks." The portion of the sentence under consideration would then be given the meaning as if it read "and shall report their conclusions to said commissioners, who shall insert such terms and conditions in the grant as are recommended by the board of docks," etc. In other words, it is the terms and conditions that are recommended by the board of docks and not the issuing of the grant. The use of the word "recommended" is significant. If, as contended by the counsel for the city, such terms and conditions as are recommended by the board of docks must be inserted in the grant, no force or effect is given to the word "recommended." Webster says to recommend is "to commend to the favorable notice of another; to commit to another's care, confidence or acceptance, with favoring representations; to put in a favorable light before any one; to bestow commendation on."
While in the case before us the board of docks only protested against the issuing of any grants, it is nevertheless necessary to consider all the provisions of this section applicable to the rights of riparian owners in order to ascertain, if possible, what powers the legislature intended to confer upon said board. The closing sentence of the portion of the section quoted should also be considered in this connection. It reads: "The validity of any such grant or patent may be judicially determined in an action brought by and in the name of the city." It is obvious from this provision that it was within the contemplation of the legislature that grants would be made by the commissioners of the land office which would be disapproved by the board of docks, and, therefore, this remedy of invoking a judicial determination was given to the city.
The functions of the board of docks as to applications of riparian owners are purely advisory; it is the duty of the board to examine into the application and report their conclusions to the commissioners which lead them to determine that the issuing of a grant will conflict with the rights and the public interests of the city, or that render necessary the insertion in the grant or patent, if issued, of certain terms and conditions which will protect the public interests of the city in respect to navigation and commerce.
The land commissioners are bound to give careful consideration to the conclusions and recommendations of the board of docks, but the power rests with them to ultimately determine whether the grant shall issue, and to decide upon its terms and conditions.
The construction of section 86 of the charter as contended for by the corporation counsel would strip the commissioners of the land office of all judicial powers as to lands under water in the city of New York and reduce them to mere ministerial officers to execute the expressed will of the board of docks.
The order of the Appellate Division should be affirmed, with costs.
PARKER, Ch. J., O'BRIEN, HAIGHT, MARTIN, VANN and LANDON, JJ., concur.
Order affirmed.