William Howard Taft

“ 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 the city or state could not impair; that the city acquired by its grant from the state the right to fill up the land granted, to build wharves thereon, and to receive wharfage; that whatever property rights it thus acquired it could convey to individuals; that by its grant to Astor the city conveyed, not only the land, excepting the part covered by West street, but also the right of wharfage ”

“ The court held that the street was held in trust by the city for the public use, and that the grant of wharfage at the end of the street did not carry the fee in the street, but only an easement of wharfage at the end of the street, as the city might extend it into the river, and that, by virtue of covenant in the deed, the grantee, if he would enjoy the wharfage, must erect a new wharf or pier at the new end of the extended street. ”

“ The Duryea and the Langdon Cases rest on the delegation by the state to the city of the state's sovereign right to control navigation or the jus publicum in the land to be disposed of by the city to private owners in pursuit of the promotion of filling land under water to a ripa or exterior line, and of the construction of docks to make a harbor. The rights of such private owners come, not from riparian rights, or gratuitous statutory grants. ”

“ To whom is given the right to build piers over these lots? The government does not attempt to take it away from the owners of the lots. It does not attempt to vest it in the city. It could not do so if it would. The right must reside in those who have the ownership of the land under the water and who until the Secretary had made his order were entitled by their grants to use the solid filling up to the line of Thirteenth avenue, without reference to the bulkhead lines or to the 100 feet spacing between the piers under the acts of 1857 or 1871. ”

“ 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. ”

“ But it is a very different thing to say that the city, which has parted with the jus publicum and jus privatum over such water lots, remains in unrestricted control of navigation, with the right to dredge them, or appropriate the water over them as a slip or regular mooring place for its adjoining piers, in the doing of a great business, largely excluding plaintiffs and all others from use of the water over those lots for the constant private use of the city's tenants for its profit. ”

“ The public interest may require the building of docks and piers to facilitate approach to the channel of such navigable waters. The beneficial enjoyment of land adjoining the channel of public waters may require or at least justify the conveyance of lands below high water on which to erect buildings. As in England the crown and Parliament can without limitation convey land under public waters, so in this state land under water below high-water mark can be conveyed by the Legislature, or in accordance with constitutional and legislative direction. ”

“ What, then, is the effect upon the rights of the parties of the fact that the grantees only filled the part of lots conveyed east of Twelfth avenue? The plaintiffs are not in default in this because there was no covenant on their part to fill. Duryea v. Mayor, supra, at page 596; Id., 96 N. Y. 477, 496; Mayor v. Law, supra, at page 391 (26 N. E. 471) . The filling was left to their convenience. They were not in default with reference to filling in the streets and avenues, because their covenant to do so was only on condition that the city should require it, and only when it did so. ”

“ The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. ”

“ 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. ”

“ Having the power to extend the ripa around the city, and thus make dry land, it could authorize any individual to do it. Whatever wharves and docks it could build, it could authorize individuals to build ”

“ This and the dredging of the soil of the plaintiffs certainly are more than a privilege of sufferance. Whittaker v. Burhans, 62 Barb. (N. Y.) 237; Wall v. Pittsburgh Harbor Co., 152 Pa. 427, 25 A. 647, 34 Am. St. Rep. 667.
The wharfage rights of the city at the piers in Thirty-Ninth, Fortieth, and Forty-First streets as far at Thirteenth avenue under the deeds before us cover only the ends of those piers and not their sides. ”