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APPLEBY ET AL. v. CITY NEW YORK ET AL.

decided: June 1, 1926.

APPLEBY ET AL
v.
CITY OF NEW YORK ET AL.



ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone

Author: Taft

[ 271 U.S. Page 379]

 MR. CHIEF JUSTICE TAFT, after stating the case as above, delivered the opinion of the Court.

The plaintiffs in their writ of error charge that the judgment of the Supreme Court of New York, as affirmed by the Court of Appeals, has interpreted and enforced the Acts of 1857 and 1871 in such a way as to impair the obligation of the contract in their deeds.

The questions we have here to determine are, first, was there a contract, second, what was its proper construction and effect, and, third, was its obligation impaired by subsequent legislation as enforced by the state court? These questions we must answer independently of the conclusion of that court. Of course we should give all proper weight

[ 271 U.S. Page 380]

     to its judgment, but we can not perform our duty to enforce the guaranty of the Federal Constitution as to the inviolability of contracts by state legislative action unless we give the questions independent consideration. It makes no difference what the answer to them involves, whether it turns on issues of general or purely local law, we can not surrender the duty to exercise our own judgment. In the case before us, the construction and effect of the contract involved in the deeds and covenants depend chiefly upon the extent of the power of the State and city to part with property under navigable waters to private persons, free from subsequent regulatory control of the water over the land and the land itself. That is a state question, and we must determine it from the law of the State, as it was when the deeds were executed, to be derived from statutes then in force and from the decisions of the state court then and since made; but we must give our own judgment derived from such sources and not accept the present conclusion of the state court without inquiry.

Ordinarily this Court must receive from the court of last resort of a State its statement of state law as final and conclusive, but the rule is different in a case like this. Jefferson Bank v. Skelly, 1 Black. 436, 443; University v. People, 99 U.S. 309, 321; New Orleans Water Company v. Louisiana Sugar Company, 125 U.S. 18, 38; Huntington v. Attwill, 146 U.S. 657, 684; Mobile & Ohio Railroad v. Tennessee, 153 U.S. 486; Louisiana Railway & Navigation Company v. New Orleans, 235 U.S. 164, 170, 171; Long Sault Co. v. Call, 242 U.S. 272, 277; Columbia Railway v. South Carolina, 261 U.S. 236, 245.

We must also consider here what effect the action of the United States in its dominant control over tidal waters for the preservation and promotion of navigation has had in affecting or destroying the rights of the plaintiffs

[ 271 U.S. Page 381]

     claimed to have been impaired by the Acts of 1857 and 1871, and consider whether such action has rendered the state legislative impairment innocuous and deprived plaintiffs of the right to complain of it.

Upon the American Revolution, all the proprietary rights of the Crown and Parliament in, and all their dominion over, lands under tidewater vested in the several States, subject to the powers surrendered to the National Government by the Constitution of the United States. Shively v. Bowlby, 152 U.S. 1. The rights of the plaintiffs in error under the two deeds here in question, with their covenants, are to be determined then by the law of New York as it was at the time of their execution and delivery. They were not deeds of gift -- they were deeds for valuable consideration paid in money at the time, and a large amount of taxes on the lots have been collected from the plaintiffs by reason of their ownership. The principle applicable in the construction of grants of lands under navigable waters in the State of New York was announced by the Supreme Court of Errors in 1829, in Lansing v. Smith, 4 Wend 1. In that case, which has always been regarded as a leading one, the commissioners of the Land Office in New York granted without valuable consideration to an upland owner land under water on which he erected a wharf after filling in the same. Thereafter the legislature authorized the erection of a mole or pier in the river for the purpose of constructing a basin for the safety and protection of canal boats, and this mole or pier entirely encompassed the wharf on the side of the water so as to leave no communication between it and the river except through a sloop lock at one extremity of the basin. It was held that the loss sustained by the owner was damnum absque injuria ; that the grant only conveyed the land described in it by metes and bounds, and, being in derogation of the rights of the public, nothing would be implied.

[ 271 U.S. Page 382]

     Chancellor Walworth, speaking for the Court of Errors of the State, said:

"By the common law, the king as parens patriae owned the soil under all the waters of all navigable rivers or arms of the sea where the tide regularly ebbs and flows, including the shore or bank to high water mark. He held these rights, not for his own benefit, but for the benefit of his subjects at large; who were entitled to the free use of the sea, and all tide waters, for the purposes of navigation, fishing, etc., subject to such regulations and restrictions as the crown or the parliament might prescribe. By magna charta, and many subsequent statutes, the powers of the king are limited, and he can not now deprive his subjects of these rights by granting the public navigable waters to individuals. But there can be no doubt of the right of parliament in England, or the legislature of this state, to make such grants, when they do not interfere with the vested rights of particular individuals. . . . The right to navigate the public waters of the state and to fish therein, and the right to use the public highways, are all public rights belonging to the people at large. They are not the private unalienable rights of each individual. Hence the legislature as the representatives of the public may restrict and regulate the exercise of those rights in such manner as may be deemed most beneficial to the public at large; provided they do not interfere with vested rights which have been granted to individuals."

In the case of New York v. New York & Staten Island Ferry Company, 68 N. Y. 71, the Court of Appeals, speaking of the common law, said, at p. 77:

"But while the sovereign can make no grant in derogation of the common right of passage over navigable waters, parliament may do so. . . . But a person claiming a special right in a navigable river or arm of the sea under a grant by parliament, as for example, a right to obstruct it, or to interfere in any way with the public easement,

[ 271 U.S. Page 383]

     must show a clear title. It will not be presumed that the legislature intended to destroy or abridge the public right for private benefit, and words of doubtful or equivocal import will not work this consequence. . . . (at p. 78.) The State, in place of the crown, holds the title, as trustee of a public trust, but the legislature may, as the representative of the people, grant the soil, or confer an exclusive privilege in tidewaters, or authorize a use inconsistent with the public right, subject to the paramount control of congress, through laws passed, in pursuance of the power to regulate commerce, given by the federal Constitution."

In that case the question involved the effect of a legislative grant of lands under water, so far as appears without valuable consideration, by the land commission of the State, in 1818, to one John Gore, on the eastern shore of Staten Island, including the premises thereafter acquired by the New York & Staten Island Ferry Company. The grant extended from low water mark into the Bay a distance of 500 feet, to have and to hold to Gore, his heirs and assigns, as a good and indefeasible estate of inheritance forever, under a statute authorizing the grant of such lands as the Commissioners should "deem necessary to promote the commerce of the state." It was held that, as there was nothing to show that it was intended to restrict the State in the preservation of the navigation of the river in that 500 feet, the grant to Gore might be and was restricted by the subsequent statute of 1857 of the State of New York, providing that it should not be lawful to fill in the land granted with earth or other solid material beyond the bulkhead line established under that law, or by piers that should exceed 70 feet in width, with intervening water spaces of at least 100 feet between them. It was therefore decided that the erection of a clubhouse on the land granted was a purpresture.

It is apparent from these decisions that, under the law of New York when these cases were decided, whenever

[ 271 U.S. Page 384]

     the legislature deemed it to be in the public interest to grant a deed in fee simple to land under tidal waters and exclude itself from its exercise as sovereign of the jus publicum, that is the power to preserve and regulate navigation, it might do so; but that the conclusion that it had thus excluded the jus publicum could only be reached upon clear evidence of its intention and of the public interest in promotion of which it acted.

What is thus declared as the law of New York in these two cases, where it was found that the jus publicum had not been conveyed, is shown in a number of cases in the Court of Appeals in which the State and its agency, the city, did part with the jus publicum to private owners of land under tidal water, and of wharfage rights thereon, upon adequate compensation and in pursuance of a plan of harbor improvement for the public interest.

In the case of Duryea v. The Mayor, 62 N. Y. 592, and 96 N. Y. 477, a deed of land under tidal water by the City of New York, with the authority of the State, conferred upon the grantees a fee simple title with all the privileges of an absolute owner, except as restricted by the covenants and reservations contained in it. The covenants related to the filling of the streets running through the lots which were excepted from the grant. The grantees had partially filled the water lots and, while this was being done, the city had flowed the land with the contents of a sewer. The sewer had been placed under a revocable license of the owner, but, when the license was withdrawn, the city insisted on continuing to use the lots for sewer discharge, and this it was held the city could not do.

In the later case, in 1884, the Court of Appeals, speaking of the deed, said, at p. 477:

"As we have before seen the deed conferred upon the grantees therein the title and absolute ownership of the property conveyed, subject only to be defeated at the option of the grantor for a breach of the condition subsequent.

[ 271 U.S. Page 385]

     "The claim now made, that there was some right or interest in the property which still remained in the city notwithstanding its deed, is opposed to the principles declared in our former decision, and the express language of the conveyance."

In Towle v. Remsen, 70 N. Y. 303, 308, the Court of Appeals, in dealing with the effect of a deed of New York City of land under tidal waters, said:

"The land under water originally belonged to the Crown of Great Britain, and passed by the Revolution to the State of New York. The portion between high and low water mark, known as the tide-way, was granted to the city by the early charters (Dongan charter §§ 3 and 14; Montgomerie charter, § 37), and the corporation have an absolute fee in the same (Nott v. Thayer, 2 Bosw. 61). It necessarily follows that the city had a perfect right, when it granted to the devisees of Clarke, to make the grant of their portion of the land in fee simple absolute. As to the land outside of the tide-way, the city took title under chapter 115 of the laws of 1807, with a proviso giving the pre-emptive right to the owners of the adjacent land in all grants made by the corporation of lands under water granted by said act. . . . The Legislature left it to the city to dispose of the interests mentioned upon the proviso referred to; but it enacted no condition that it should not dispose of that which it owned in fee simple upon such terms as it deemed proper, and in the absence of any such enactment, such a condition can not be implied."

A deed of this class came before the Court of Appeals in Langdon v. The Mayor, 93 N. Y. 129. The State Commissioners of the Land Office, under a law of 1807, granted to the city a strip of land under water in the North River, the westerly line of which was in the river 400 feet west of the low water mark. The city laid out an extension of West Street along this strip, parallel with the river, the

[ 271 U.S. Page 386]

     westerly line of the street being about 200 feet out in the river west of low water mark. In 1810 the city granted to Astor, the owner of the adjoining uplands, certain lands under water, including a portion of the strip, the westerly bounds of the grant being "the permanent line of West street, saving and reserving so much of the same as will be necessary to make West street in accordance with the map or plan." In consideration of the grant the grantee covenanted to pay certain perpetual rents, to make such wharves as should be necessary to make the portion of West Street, within the bounds of the grant, of the width specified, and forever thereafter to maintain and keep them in repair. The city covenanted that the grantee should at all times thereafter have the wharfage, from the wharf or wharves to be erected on the west end of the premises granted. Astor constructed West Street across the land granted, in accordance with his covenant, and maintained the wharf on the westerly line of said street. Without making compensation to the plaintiff who succeeded to his title, the city erected a bulkhead out shore from such westerly line and filled up the space between it and the old bulkhead, and destroyed the use of the wharf. It was contended that the city and State could not part with the power to preserve and regulate navigation in the water between the wharf and the 200 feet beyond owned by the city. The Court of Appeals held that the covenant as to the wharf which the city made to Astor in the deed was a grant of an incorporeal hereditament of wharfage which ...


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