There are three reasons why the award made to the claimant herein should be susstained and the judgment of the Appellate Division affirmed.
First. By various acts of the legislature, William Beard and others, upland owners at Gowanus bay, were given the right to fill in the lands under water in front of their premises up to certain defined lines. The act of 1866 (Chap. 856) established the Brooklyn basin and gave to Beard the right "to build, construct and maintain a bulkhead with solid filling on the line established by the legislature of this State by chapter seven hundred and sixty-three, of the laws of eighteen hundred and fifty-seven, * * * and to fill in the land under water between high water line of the upland belonging to said owners of said real estate and the bulkhead hereby authorized to be constructed." The owners were also authorized to construct a pier running out from the bulkhead and a sea wall inclosing a basin of water between the sea wall and the solid filling upon the bulkhead line, which basin was to be known as "The Brooklyn Basin."
The act was not to take effect until the consent of the commissioners of the land office should first be obtained "to use the privileges intended to be granted by this act." The consent of the commissioners was thereafter obtained.
By chapter 702 of the Laws of 1873 and chapter 398 of the Laws of 1875, the bulkhead lines at Gowanus bay were materially changed in accordance with the report of a board of officers appointed by the president in pursuance of a concurrent resolution of the senate and assembly, passed April 6, 1872. The latter act provided: "Whereas, *Page 326 the board of officers appointed by the President * * * recommended the modification of the lines and spaces of the * * * Brooklyn Basin in accordance with the changes shown on a map annexed to said report; and, Whereas, William Beard, Jeremiah P. Robinson, Franklin Woodruff and others, owners of the waterfront and lands adjacent to * * * said Brooklyn Basin are desirous of carrying out the changes and modifications recommended in said report; now, therefore, the People of the State of New York * * * do enact as follows: Section 1. The pier, bulkhead and other lines adjacent to the shores on the Brooklyn side of the port of New York * * * are hereby altered, declared and established as follows, that is to say:" Then follows a detailed statement of the changes, summed up at the end in these words: "The new lines hereby established being shown on a map entitled, `map showing plan for the improvement of the waterfront and adjacent lands in the twelfth ward of the city of Brooklyn, New York, owned by William Beard, Jeremiah P. Robinson, Franklin Woodruff and others, dated March first, one thousand eight hundred and seventy-five, Leander N. Vibbard, city surveyor.'" The bulkhead line established according to this Vibbard map was so changed as to create two basins, each 200 feet wide, between tongues of land extending out to the sea-wall or bulkhead line. These basins were known as "Hicks Street Basin" and "Henry Street Basin" and were over 2,000 feet in length. Beard and his co-owners were given the right to fill in solidly the land each side of these basins up to the bulkhead line as designated on the map. Thereafter chapter 327 of the Laws of 1876 opened and established Henry street and Columbia street over the land to be filled in up to the bulkhead line.
The Vibbard map corresponds to the appropriation map in this proceeding, designating the property to be taken by the state for the canal terminal at this point.
Sufficient has been stated to show that Beard and others, *Page 327 the owners of the upland, had received from the state rights and privileges in the nature of grants which were very valuable to upland owners. Something more was done than merely to establish a bulkhead line. Rights and privileges were given to Beard and others which have never been withdrawn by the state.
The above acts, however, appropriating public property to local or private purposes were passed by a three-fifths vote of the legislature instead of the requisite two-thirds. (Constitution, art. 3, sec. 20.) To cure this defect chapter 491 of the Laws of 1884 was passed by two-thirds of the legislature, which confirmed the grants theretofore made by the acts of 1873 and 1875, above referred to. The fact that the legislature deemed it necessary to confirm these earlier grants by a two-thirds vote clearly indicates its understanding that private rights were granted in public property.
By appropriate legislation, therefore, the upland owners were granted the privilege and right of solidly filling in the land under water within the bulkhead lines as established by the Vibbard map. This franchise or right has never been withdrawn or revoked by the state, nor have any direct proceedings been taken to declare a forfeiture thereof. These valuable rights were owned by Beard, the upland owner, at the time the Barge Canal Terminal Act (Laws of 1911, chap. 746) was passed, authorizing the acquisition of his property at Gowanus bay. (Thousand IslandSteamboat Co. v. Visger, 179 N.Y. 206, 213; Archibald v.N.Y.C. H.R.R.R. Co., 157 N.Y. 574; Towle v. Remsen,70 N.Y. 303; Fowler v. Coates, 201 N.Y. 257, 263; New YorkElectric Lines Co. v. Empire City Subway Co., 235 U.S. 179,193; Mackall v. Chesapeake Ohio Canal Co., 94 U.S. 308;Cluthe v. Evansville, M.C. N.R. Co., 176 Ind. 162;Trelford v. Coney Island B.R.R. Co., 6 App. Div. 205.)
The action of the canal board, in seeking to condemn these rights and privileges, or whatever property Beard *Page 328 had extending out to the bulkhead line, and to pay therefor, would indicate, at least, the recognition upon the part of the state of the existence of certain rights. (Lehigh Valley R.R.Co. v. Canal Board, 204 N.Y. 471.) The description of the property taken in this proceeding includes the following: "Being all the right, title and interest which the heirs and assigns of Wm. Beard and others received from the State of New York in the following acts of the State Legislature: Laws of 1847, chap. 202; Laws of 1851, chaps. 83 and 184; Laws of 1857, chap. 763; Laws of 1866, chap. 856; and Laws of 1875, chap. 398."
We can hardly assume that the state meant to destroy when it proposed to purchase. The canal board act and the proceedings thereunder can in no way be considered acts of forfeiture or proceedings by the state to terminate Beard's interest without compensation. (Matter of N.Y. Long Island Bridge Co. v.Smith, 148 N.Y. 540.)
Non-user does not constitute abandonment. (Wright v.Milwaukee El. Ry. L. Co., 95 Wis. 29, 37.)
Second. In my opinion, chapter 491 of the Laws of 1884 did more than cure prior defective legislation, as above indicated. It confirmed and established the grants of 1873 and 1875 in fee simple.
That the state, having title to the lands under water of Gowanus bay, could grant the same in fee to the upland owner or to anybody else is beyond dispute. (Wetmore v. Atlantic WhiteLead Co., 37 Barb. 70; Wetmore v. Brooklyn Gas Light Co.,42 N.Y. 384; People ex rel. Loomis v. Canal Appraisers, 33 N.Y. 461;Williams v. Mayor, etc., of New York, 105 N.Y. 419;People v. Steeplechase Park Co., 218 N.Y. 459.)
The crude language used by the legislature in making such grant cannot affect its validity provided the intention is clear and the provisions of the Constitution are complied with. Thus a grant may be made in fee although the act purports to confirm previous grants *Page 329 which were not in fee, provided the bill shall embrace but one object, which shall be expressed in the title.
The title of chapter 491 of the act of 1884 reads as follows: "An Act to ratify and confirm certain grants made in pursuance of section three of chapter seven hundred and two of the laws of eighteen hundred and seventy-three." The provisions of the act are contained in but one section, and are to the effect that the John Newton map (same as the Vibbard map) of the bulkhead lines at Gowanus bay, filed in the secretary of state's office on the 4th day of March, 1884, shall be sufficient evidence of the original map made by the commissioners appointed under the concurrent resolution of the senate and assembly in April, 1872, and that the grants of land under water to the exterior boundary line appearing upon said map are ratified and confirmed to the grantees thereof in fee simple. The title and the act deal with but one subject, and that is the grants, or privileges, or rights, conferred by the Laws of 1873 and 1875 above referred to, and it confirms or ratifies these grants in fee. "Confirm" means to strengthen, to establish, to make more firm. (Century Dictionary.)
Section 16 of article 3 of the Constitution is complied with when the title is such as to fairly suggest or give a clue to the subject, and, when that is expressed, all matters fairly or reasonably connected with it are proper to be incorporated in the act and are germane to the title. (Sweet v. City of Syracuse,129 N.Y. 316, 331; Astor v. Arcade R. Co., 113 N.Y. 93.) Chief Judge CHURCH, in People ex rel. City of Rochester v.Briggs (50 N.Y. 553, 558), said the object of this constitutional provision was to prevent the fraudulent insertion of provisions upon subjects foreign to that indicated in the title. "Nor should courts," he continued, "criticise too rigidly the details of a bill to find extraneous matter. Every presumption is in favor of the validity of legislative acts, and they are to be upheld unless there is a substantial departure *Page 330 from the organic law." In Matter of Dept. of Public Parks (86 N.Y. 437) it was said that the title need not be exact and precise in all respects, that it was sufficient if it conveys to the mind an indication of the subject to which it relates. (See, also, Matter of Mayor of City of New York, 99 N.Y. 569; Peopleex rel. Olin v. Hennessy, 206 N.Y. 33, 39; Economic P. C.Co. v. City of Buffalo, 195 N.Y. 286; People ex rel.Corscadden v. Howe, 177 N.Y. 499.)
The above title could deceive no one. It directed attention to the grants, whatever they were, made by the act of 1873; in other words, the grants under the Vibbard (Newton) map, and established these in fee simple. If this act of 1884 attempted to strengthen the rights or privileges granted under the previous acts and to firmly fix them as fee grants, it did so by its main provisions and sufficiently indicated it in the title so as not to mislead or deceive anybody. The claimant herein, therefore, had a fee to the lands appropriated by the canal board and the referee was right in so finding.
Third. But if we treat the rights under the above acts as capable of forfeiture unless exercised or acted upon, then I say that the findings in this case justify the conclusion that these rights and privileges have been used and the lands filled in and occupied by the upland owners.
William Beard, the claimant's predecessor in title, owned the upland extending from Reid street on the west of the appropriated property to Bryant street on the east of it. It was all one large extent or piece of upland. By various acts of legislation, some of which have been mentioned, the upland owners were given the right to fill in. The larger part of this water front and land under water to the bulkhead line has been filled in and the Erie basin established. The portion taken by the state in this proceeding is a little less than one-eighth of the whole of the bulkhead line of the Beard property. The land surrounding that appropriated by the state has *Page 331 been filled in by the claimant's predecessor in title up to a level with the surrounding country and the city grade of streets six or eight feet above mean high water. The filling also extends across the corner of the land appropriated outside of that which was formerly high land. Beard's property, land under water, has been filled in on either side of the portion here sought to be taken. The claimant's predecessor in title, after the act of 1875, also dredged within the limits of the Henry street basin created by that act and also constructed a pile pier across the outer boundary on substantially the bulkhead line established by the act and extending nearly across the lands appropriated by the state. A roadway was also constructed slightly to the west of where Columbia street would be, if said street had been opened as shown upon the maps of the city of Brooklyn and the city of New York. The lands appropriated have also been used by the upland owners for a dumping ground and they have derived a revenue therefrom by charging and collecting for the privilege of such dumping. This was a method of filling in. It has been stipulated that 82,655 square feet of the 1,442,022 square feet appropriated in this proceeding have been filled in by the owners of the upland pursuant to the rights granted under the acts of the legislature.
How can it be said that in view of these facts the privileges granted to Beard and others, the upland owners, by the legislature of this state have not been exercised and developed into rights of property?
For the above reasons, the determination of the Board of Claims was correct and the judgment of the Appellate Division affirming the same should be affirmed.
CHASE, COLLIN, HOGAN, CARDOZO and McLAUGHLIN, JJ., concur with HISCOCK, Ch. J.; CRANE, J., reads dissenting opinion.
Ordered accordingly. *Page 332