US SUPREME COURT DECISIONS

1. Acting under general authority contained in a New York statute of 1871, the Dock Commissioner of New York, with the approval of the Sinking Fund Trustees of the city, adopted a plan of harbor improvement inconsistent with the right of the plaintiffs, under contracts made with the city before the date of the statute, to fill in their water lots out to a bulkhead line, and their application to the Commissioner for permission to do such filling was therefore denied by him. Held, that the refusal was equivalent of a law of the state impairing the obligation of the contracts within the meaning of Article I, § 10, of the Constitution, and that this Court had jurisdiction, under Jud.Code, § 237, to review by writ of error a judgment of the state court sustaining the refusal over the constitutional objection. P. 271 U. S. 409.

2. Where the grantees of water lots conveyed to them by the City of New York in fee simple, "to be made and gained out of the chanrobles.com-red

Page 271 U. S. 404

Hudson River," together with wharfage rights, covenanted to build wharves, bulkheads, and certain avenues and streets within the outboundaries of the premises conveyed, upon request of the city, but not to build them without its permission, and the ordinance under which the deeds were made provided that

"No grant made by virtue of this ordinance shall authorize the grantee to construct bulkheads or piers or make land in conformity therewith without permission to do so is first had and obtained from the common council,"

Held:

(1) That the requirement of the city's consent before filling should be construed as relating to the streets, and not to the lot between them, since otherwise the enjoyment of the lots, for which the grantees gave valuable considerations and on which for many years they had paid the city taxes in reliance on this construction, as supported by utterances of the state courts and declared to have become a rule of property, would be dependent upon the mere pleasure of the city. P. 271 U. S. 409.

(2) That, if the provision applied at all to the lots, it should be regarded as a mere police regulation, requiring a permit for the purpose of supervising the filling in protection of the public order. P. 271 U. S. 413

235 N.Y. 364, 199 App.Div. 552, reversed.

This is a writ of error to a judgment of the Supreme Court of New York in a suit for mandamus entered by direction of the Court of Appeals of New York in a case involving the same deeds of water lots between 39th and 41st Streets, on the east side of North or Hudson River, which have been under consideration in the case just decided. The petition of the Applebys as relators in this case shows that they have performed all the covenants they had to perform under the deeds; that neither they nor their predecessors in title had ever been required to build or erect piers, wharves or bulkheads, referred to in the deeds; that, under the Act of 1871, a Department of Docks was created, with general supervision and control of the dock property of the city; that it was given authority, with the approval of the Sinking Fund trustees of the city, to make a plan or plans for the improvement of the harbor, to lay out wharves, and to condemn such vested chanrobles.com-red

Page 271 U. S. 405

property interests of individuals as might interfere with such plans and make compensation therefor; that, in June, 1891, the city instituted a condemnation proceeding to acquire the Appleby property, but that, in 1914, it discontinued it, and since that has never attempted to acquire title to the premises; that a plan was adopted, in 1916, by the Dock Commission for harbor improvement, with the approval of the Sinking Fund trustees, for a marginal wharf to be 250 feet wide, to include all of 12th Avenue, and so much of the Appleby property as lay west of 12th Avenue, and within a distance of 100 feet westerly therefrom, which would interfere with relators filling their lots; that in December, 1919, the Applebys made application to the Commissioner of Docks to begin and continue the filling of the two lots of the Applebys within the government bulkhead line as permitted by their deeds; that the Commissioner of Docks, in answer to this application, wrote as follows:

"January 31st, 1920"

"Replying to your letter of the 26th instant, I beg to advise you that the application of Edgar S. Appleby and John S. Appleby for permission to construct either a platform between West 39th and West 41st Streets, North River, or a concrete wall on platform construction with sheet piling along the inner side to retain filling is hereby formally denied on account of the fact that the proposed construction is not in accordance with the new plan."

Thereupon this suit was brought by the Applebys against the Dock Commissioner to compel the issuing of the necessary permit. This was denied by the Supreme Court in special term. The denial was reversed in the Supreme Court, Appellate Division, and that reversal was in turn reversed by the Court of Appeals in an opinion as follows:

"Relators seek to compel the commissioner of docks to approve permits for the filling in of lands under water. "

Page 271 U. S. 406

"The facts herein are substantially the same as in Appleby v. City of New York, decided herewith, with this difference: the city established a new bulkhead line in 1916, which crosses the premises granted between Twelfth and Thirteenth Avenues. It was held in the action that the rights of the relators are not limited by this bulkhead line, but only by the bulkhead line established by the Secretary of War. The court below decided herein that a writ of peremptory mandamus should issue unless condemnation proceedings were instituted to acquire relators' property and property rights within such line. (199 App.Div. 552.)"

"We held in the action that the title of relators to lands actually under water is subject to the rights of the city to improve the same for the purposes of navigation. but that the city must reacquire the property right in the land under water which it has conveyed before it can carry out its plans for such improvement."

"This application should not, however, be granted. Section 15 of title 4 of the sinking fund ordinance of 1844, referred to in the opinion in the action, provides:"

" No grant made by virtue of this ordinance shall authorize the grantee to construct bulkheads or piers or make land in conformity therewith without permission to do so is first had and obtained from the common council."

"The water grants under which relators hold title also provide:"

" And it is hereby further covenanted and agreed, by and between the parties to these presents, and the true intent and meaning hereof is that the said party of the second part, his heirs and assigns will not build the said wharves, bulkheads, avenues or streets hereinbefore mentioned or any part thereof, or make the lands in conformity with the covenants hereinafter mentioned until permission for that purpose shall be first had and obtained

Page 271 U. S. 407

from the said parties of the first part or their successors, and will not build or erect or cause to be built or erected any wharf or pier or other obstruction in the Hudson River in front of the hereby granted premises without the permission of the said parties of the first part or their successors or assigns first had for that purpose."

"In Duryea v. Mayor, etc. (62 N.Y. 592), it was said that a similar clause did not limit the right of the owners to fill the space between the streets, but on a subsequent appeal (Duryea v. Mayor, etc., 96 N.Y. 477), it was said that the provisions of the sinking fund ordinance had not been called to the court's attention on the first appeal, and it was held that the council had given its consent. We are free to interpret the clause according to its meaning. To construe the ordinance and the grants as permitting the filling of the land between the streets at the will of the grantee and as prohibiting the building of the wharves and streets without the consent of the common council would be unreasonable. The lands are thus held subject to the conditions of the grant, and may not be filled in without the approval of the city authorities. The power to grant permission to construct bulkheads or piers and to make land in conformity with relators' grants implies the right to withhold such permission."

The Sinking Fund ordinance, referred to in the opinion of the Court of Appeals, does not appear in the record. The Court of Appeals, however, took judicial notice of it, and the following statement with respect to it is taken from the opinion of that court in the case of Duryea v. The Mayor, 96 N.Y. 477, 485-486:

"These ordinances adopted in 1844 provide, among other things, that the lands under water on the shores of the island of New York, belonging to that city under its several charters, might be sold and conveyed by such city to parties desiring to purchase the same, giving priority to the owner of the adjacent upland upon certain terms and conditions therein mentioned. "

Page 271 U. S. 408

"Section 15 reads:"

" No grant made by virtue of this ordinance shall authorize the grantee to construct bulkheads or piers or make land in conformity thereto without permission so to do is first had and obtained from the common council, and the grantee shall be bound to make such lands, piers and bulkheads at such times and in such manner as the common council shall direct under penalty of forfeiture of such grant for noncompliance with such terms of the common council."

"These ordinances were recognized and approved by the state legislature in ch. 225 of the Laws of 1845, and were attempted thereby to be placed beyond the power of the local authorities of the city to limit or amend without the previous consent of the legislature. "

Page 271 U. S. 409