Schermerhorn v. Mayor , 3 Edw. Ch. 119 ( 1837 )

The Vice-Chancellor :

It may be assumed, that the defendants were owners in fee of the soil under water, which was formerly old slip. It appears to be parcel of the one hundred and twenty-seven acres granted by the thirty-eighth section of the charter of 15th January, 1730, comprising a strip of land reaching from Corlear’s Hook to Whitehall, and extending from low water mark four hundred feet into the East river : (City Charter with Kent’s Notes, p. 87.) This land under water was granted in the amplest manner, “ with full power and authority, at any time or times hereafter, to fill, make up, wharf, and lay out all and every part thereof, and the same to build upon and make use of in such manner as they the said mayor and aldermen and commonalty and their successors shall think fit.”

By previous grants, the corporation had title to all the land between high and low water mark; and by the ancient maps of the city, it will be seen, that the line of low water mark on the East river was not farther south than where Water street now is. Old slip, therefore, as it lately existed, coming up only to Front street and the water lots granted by the corporation to the individuals, under and from whom the complainants derive title as alleged in their bill, are parcels of the'same'grant of four hundred feet int > the East river. In the deeds or conveyances of those lots on each side of old slip, the corporation did not stipulate to keep the intermediate space for ever open as a public slip. It is not pretended they were bound to do so ; for, although the grantees were required to construct a wharf and street on the side of their respective lots, so as to form a slip, the corporation retained the ownership and use of the slip and of the soil under water within the slip ; and this intermediate space they were at liberty to fill up with earth at any time. Such is the express authority of the grant to them ; and without such authority, it would seem to follow as a matter of right incidental to their ownership. That part of sec. 267 of the act of the legislature, (2 Ls. N. Y. of 1813, page 445,) having a bearing on this point, is only declaratory of the right which the corporation already possessed. Section 269 of the same act, authorizing the corporation to assess two-thirds of the estimated expense of filling up the slip on the owners of property in the vicinity who may be benefited thereby, could not have been intended to confer upon such individual owners any interest in the land or restrict the use which the corporation might think proper to make of it after the filling up. The requisition upon them to contribute to the expense must have proceeded upon the notion of a benefit to private property in the general improvement of the neighborhood by filling up and discontinuing a public slip. The manner of making the assessment, as if it were for paving and regulating the streets of the city, cannot have the effect of making the place a public -street. It is not declared in the statute that it shall become a street; and the proceeding on the part of the corporation cannot, I think, be construed into a dedication to that particular purpose. The corporation, as already shown from the language of their charter, have a right to build upon and make such use of the land, when filled up, as they shall think fit. To take away or to restrict this right, requires something more than the reclaiming of the ground from the water and assessing a portion of the expense upon'the citizens. The corporation are still to exercise their corporate and legislative powers and to prescribe the use to which the property shall be applied. If they should determine to regulate and use it as a public street, I will not say that they may not be bound to continue it as a street; but if they resolve to erect a market house or any other buildings upon the site of the slip, when filled up, or to appropriate the ground to any other use which an owner of private property might lawfully do, I can perceive no good reason why they may not do so.

It is true the bill speaks of it as a public street; and whatever is alleged, as matter of fact, must, upon the present motion, founded on the bill alone, uncontradicted, be taken as true. But these allegations of the bill I consider to be rather the statement of inferences or conclusions of law than of fact, and, if found not warranted by the premises, may be disregarded.

The bill, moreover, claims that there has been a dedication to the public use as an open space, at least, if not as a public

street, and the complainants insist on being protected in the enjoyment of it as such open space, whatever may be the title of the corporation to the land; and the cases of the Trustees of Watertown v. Cowen, 4 Paige, 510, of the City of Cincinnati v. White, 6 Peters, 431, and of others of that class are relied on for the principle to support this position. But there are not facts enough in the present case to warrant the application of the principle in those cases. The corporation of the city have done no act by which this piece of land has been appropriated and laid out, as a public square or common and dedicated to the public use as such. They, as owners, have not laid out and sold lots with reference to it as a public square or space to be left open and unoccupied with buildings. While it remained a slip and was used by vessels coming to and lying in its waters, it could not be deemed a public square or mall; and diverting it from the former use does not necessarily give to it the latter character. If the owners of adjacent property had a right to have it remain a public slip for ever, they should have objected in due season to the filling up ; but, not having done so, they must be considered as having acquiesced in that measure and are bound to submit to the legislative wisdom of the common council as respects any further use to be made of the land for public purposes. According to the views which 1 now entertain of this case, the injunction restraining the corporation from erecting a market-house must be dissolved.