It seems to me that the prevailing opinion ignores the contract entered into by the city of New York and the relator corporation.
The property embraced in this proceeding is included in three separate leases running ten years, from January, 1894, with the privilege of one renewal.
The city of New York, as party of the first part, agreed with the International Navigation Company, the party of the second part, that the latter should keep and maintain the wharf property and the structures thereon in good repair, and, in addition, the party of the first part licensed, authorized and extended to the party of the second part the right to, and the party of the second part bound itself to erect and maintain upon the pier during the term a shed, which was "to become the property of the party of the first part on the expiration or sooner determination of the leases, or any renewal thereof," etc.
The party of the second part is also bound, if the wharf property shall be destroyed by fire, etc., to rebuild the same.
It seems to me clear that it was the intention of the parties that the shed should remain the property of the relator until the leases expired or otherwise terminated. The language is perfectly clear, the shed is "to become the property" of the city at the expiration of the leases.
It is the well-settled law of this state that it is competent for parties by contract to so regulate their respective interests that one may be the owner of the building and another of the land. (People ex rel. Muller v. Board of Assessors, 93 N.Y. 308,311; People ex rel. Van Nest v. Comrs. of Taxes, 80 N.Y. 573;Smith v. Benson, 1 Hill, 176; People v. Cassity,46 N.Y. 46; Smith v. Mayor, etc., 68 N.Y. 552.)
The learned counsel for the respondent is quite frank in the position he takes. He says: "Ownership necessarily implies *Page 103 perpetuity, or at least the possibility of perpetuity. * * * No form of words can make ownership anything different from what it is in point of law. Even if the lease had expressly provided that the tenant should be the owner during the term, and the city should become the owner at the end of it, still the interest of the tenant in the shed would be only that of a termor and the city would have been the legal owner of it all the time."
I think this statement involves an obvious fallacy and is contrary to the settled law of this state.
If it is competent, as the authorities hold, that parties by contract can so regulate their respective interests that one may be the owner of the building and another of the land, it is difficult to see what legal obstacle in the case at bar prevented the contracting parties entering into covenant that the company shall erect and maintain and replace, if destroyed by fire, etc., certain structures on the wharf to remain its property during the twenty years that these leases may possibly continue, and, at the end of that period, in the express language of the contract, they are "to become the property" of the city; that is to say, by the terms of the contract the title is then transferred. This is nothing more than a contract for the future transfer of title.
It is admitted by counsel for respondent that this provision of the contract was probably inserted to prevent the removal of the shed at the end of the term as a trade fixture.
In this case we are simply considering the title, which is the subject of taxation, as the statute makes the shed "land."
The Revised Statutes (Part 1, chap. 13, tit. 1, sec. 1) provide that, "All lands * * * within this state, whether owned by individuals or corporations, shall be liable to taxation. * * *
"§ 2. The term `land,' as used in this chapter, shall be construed to include the land itself, above and under water; all buildings and other articles and structures, substructures and superstructures erected upon, under or above, or affixed to the same; * * *" *Page 104
Under this statutory definition of land it seems to me clear that the structure to be erected by the company is taxable as the land or property of the company, and without regard to the fact that the fee of the soil is vested in the city.
The further point urged against this assessment, that it is illegal, because the structures on the two piers and bulkhead are made in a lump sum, is not, in my opinion, well taken.
I think the order appealed from should be reversed, with costs.
ANDREWS, Ch. J., O'BRIEN, HAIGHT and MARTIN, JJ., concur with GRAY, J., for affirmance; BARTLETT, J., reads for reversal; VANN, J., not voting.
Order affirmed.