I am unable to concur in the conclusions reached by a majority of my associates.
The facts involved are simple and not in dispute. The plaintiff, the town of Brookhaven, obtained title in fee to the shore in question below high-water mark, under three grants made in behalf of the king, and dated respectively 1666, 1686 and 1693. The respondent Post is its lessee.
Four years after the last grant above mentioned, one of a similar nature was made to William Nicholl under which the appellant Smith has derived title to a small piece of land abutting on the shore at high-tide mark, and the other defendants respectively to other small parcels.
These royal grants are amongst those which were subsequently confirmed by our Constitution (Art. 1, sec. 17), and are entitled to full recognition and credit. They are the foundations upon which must rest the rights of the respective parties.
From the abutting upland above mentioned, appellants have built a dock out over the lands granted to the town into the water for a distance of about 150 feet. We are justified in construing the stipulation of the parties to be that this dock is not objectionable in its form or size if there was a right to build one at all, and this action, therefore, cannot be maintained on the theory that it is such an obstruction to the rights of the public as to be a nuisance per se. *Page 89
There are no special clauses or circumstances found in or connected with the original grants or the subsequent conveyances thereunder which enlarge or restrict the rights of the litigants under such grants as determined by the general rules of law applicable thereto. It is not urged by the appellants that there was in the grant to the respondents any express reservation of the wharfing privilege which they are claiming. Upon the other hand, the respondents do not claim that the grant to them of the tideway by the crown while it still owned the upland impliedly cut off any easements ordinarily appurtenant to such upland, but upon this appeal they expressly concede to the owners of the latter the right of access to the water without a pier. Neither is there any evidence or claim that in New York as in other colonies and states any ordinances or statutes were or have been passed or any recognized custom or usage developed changing the general principles of law upon the subject and giving to the upland owner greater rights than naturally prevailed. Whatever evidence there is of usage tends to support the respondents' position, because it shows that for many years upland owners have been accustomed to take leases from the town of rights over and beyond the tideway.
Those general principles by which the rights of the parties thus are to be measured, of course, are to be found embodied in the common law as it existed in England at and prior to the dates of the grants and as it had been by the colonists brought to and adopted in this country. (Const. art. 1, sect. 16.) For it is well settled that such grants were in the nature of contracts which are to be construed and interpreted in the light of the law as it prevailed when they were made. (Fletcher v. Peck, 6 Cranch, 87, 137; Danolds v. State of N.Y., 89 N.Y. 36, 45;People ex rel. Howell v. Jessup, 160 N.Y. 249, 261; VonHoffman v. City of Quincy, 4 Wall. 535; Pritchard v.Norton, 106 U.S. 124, 132-3; Barnitz v. Beverly,163 U.S. 118, 125.)
Therefore, this interesting controversy seems to narrow to the question what, under the common law, were the riparian rights of an upland owner abutting upon tide water as against the proprietor *Page 90 of the soil below high-water mark at the time the grants were made through which the parties here derive title, or, to make the issue still more restricted, did that law accord to such upland owner the right to build a wharf over the soil of the other?
This problem must necessarily be determined by reference to those authorities which have interpreted and defined such law, and which are either controlling upon us or proper guides for us in our examination. Their declarations must be accepted as establishing the fact that this ancient law did or did not permit the privilege here claimed by appellants, and their review at considerable length becomes essential even though it may seem tedious.
Before proceeding to a consideration of the authorities, it may be well to call to mind some of the general features and principles which characterize the ownership of the soil under navigable waters, and which may be of assistance in fully appreciating what is said in some of the decisions.
By the common law, both the title and the dominion of the sea and all rivers and arms of the sea where the tide ebbed and flowed and of all the lands below high-water mark within the jurisdiction of the crown of England were in the king, but he held this title and dominion in a two fold capacity. He had dominion thereof as the representative of the nation and for the public benefit to be derived from the use and enjoyment of navigable waters. This was the jus publicum which he could not personally or by grant impair or cut off. The jus privatum which the king enjoyed through title to such lands as of waste and unoccupied lands belonged to him as sovereign and proprietor. It was a property right and the title and right which he enjoyed in this capacity he could by virtue of his proprietary interest convey to a private individual, but always subject to the rights and privileges of the people at large comprehended within the definition jus publicum. (Shively v. Bowlby, 152 U.S. 11;People v. N.Y. S.I. Ferry Co., 68 N.Y. 71; Martin v.Waddell, 16 Peters, 367, 411-13; People v. Vanderbilt,26 N.Y. 287, 292-3.) *Page 91
Upon the settlement of the colonies the rights held by the crown passed to the grantees in the royal charters in trust for the communities to be established, and after the American revolution, charged with a like trust, they were vested in the original states within their respective borders subject to the rights surrendered by the Constitution of the United States. (Shively v. Bowlby, 152 U.S. 57.) These two classes of rights, public and proprietary, afforded opportunity for two classes of wrongs. An unauthorized obstruction, injuring the juspublicum by impeding or in any manner interfering with the common right of the public to navigate and use the waters was and is a nuisance and to be abated as such. A purpresture relates, on the contrary, to the jus privatum. It was and is an invasion of the right of property in the soil while held by the king or the people. It might or might not also be a nuisance. (People v.Vanderbilt, 26 N.Y. 287, 293.) Where, therefore, we find a decision upholding the removal of a dock or similar structure over soil below high-tide water not as a nuisance but as a purpresture, such decision becomes of importance as defining the rights of a proprietary owner as distinguished from the public right of navigation. It could be abated and removed at the suit of the attorney-general in England and by the people in this state, whether a nuisance or not. Being an encroachment upon the soil of the sovereign, like trespass upon the soil of a private individual, it would support an action irrespective of any damage which might accrue. (People v. Vanderbilt, supra.)
Proceeding to the authorities, I shall refer first to some of the English ones which have been called to our attention and which seem to establish that in England the common law forbade the owner of the upland to construct a pier or wharf over the soil below high-water mark.
Johnson v. Barrett, decided in 1647, is reported in Aleyn's 3 King's Bench Reports, at page 10, as follows: "In an action of trespass for carrying away soil and timber, c. Upon trial at the bar, the question arose upon a key that was *Page 92 erected in Yarmouth, and destroyed by the bailiff and burgesses of the town, and Roll said that if it were erected between high-water mark and low-water mark, then it belonged to him who had the land adjoining, but Hale earnestly affirmed the contrary, viz.: that it belonged to the King of common right; but it was clearly agreed that if it were erected beneath the low-water mark, then it belonged to the King." Here there was no question raised of any impediment to navigation.
Lord Hale died in 1676. His treatise, De Portibus Maris, is a leading authority and is found in Hargreave's Law Tracts, and at page 85, in a list of nuisances, contains the following: "The straightening of the port by building too far into the water, where ships or vessels might have formerly ridden; for it is to be observed that nuisance or not nuisance in such case is a question of fact. It is not, therefore, every building below the high-water mark, nor every building below the low-water mark, isipso facto in law a nuisance. For that would destroy all the keys that are in all the ports of England. * * * Indeed, where the soil is the King's the building below the high-water mark is a purpresture, an encroachment, and intrusion upon the King's soil, which he may either demolish or seize or arent at his pleasure; but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation."
In Attorney-General v. Richards (2 Anstr. [1795] 603), which was an action to abate a wharf, the court held that it was immaterial whether or not the wharf was an actual nuisance, it was a purpresture and could, therefore, be abated. (See, also,Attorney-General v. Philpot, nowhere reported, but cited in last above case.)
Parmeter v. Gibbs (10 Price, 412) was decided in the House of Lords in 1822. The riparian owner had built a wharf between high and low-water mark and the crown brought a bill to abate and remove it. Two points were raised by the defense: First, that the defendant had title to the land under a royal grant.Second, that the erections were *Page 93 no impediment to navigation. The first point having been decided against the defendant, the court declined to consider the second one, holding that upon that ground the judgment ought to be affirmed.
Gould on Waters (Sec. 167) states the common law of England as not securing to the owner of abutting lands the right to extend wharves beyond high-water mark of tide waters.
When we pass to the consideration of decisions in the different courts of the United States, it is, of course, to be borne in mind that the rule of common law as laid down in England has been affected in various states by legislation or usage, and that, therefore, a decision relating to this right in one state would not necessarily be an authority upon the same question arising in a different one. When, however, we find a decision based upon the common law as it existed prior to April 19, 1775, as of which date we incorporated the principles of that law into the law of this state, or an opinion pertinently discussing and defining the common law as it then existed, such decision or discussion becomes a proper authority by which to shape our course in the present case. I think that the clear weight of such authorities is against the right of the upland owner to wharf out over the tideway and adjoining soil. It is not practicable to review all of the judicial literature bearing upon this subject, and I shall refer only to a few of the utterances of courts outside of this state which unquestionably are entitled to much respect.
In Weber v. Harbor Commissioners (18 Wall. 57) the plaintiff filed a bill against the defendants to compel them to abate and remove certain erections made by them on the water front of San Francisco, which he alleged interfered with a wharf rightfully put there by him. His rights depended upon certain acts of the legislature of the state giving to the city of San Francisco rights in portions of the lands covered by the tide waters of the bay of San Francisco in front of the city, and a subsequent grant by the city to Weber's predecessors of its title to certain lots. The discussion involved a consideration of what plaintiff's rights would have been in *Page 94 the absence of legislation or usage, and Mr. Justice FIELD, after referring to the case of Yates v. Milwaukee (10 Wall. 497) as applying the correct doctrine to the facts there involved, said: "Nor is it necessary to controvert the proposition that in several of the states by general legislation or immemorial usage the proprietor whose land is bounded by the shore of the sea or of an arm of the sea possesses a similar right to erect a wharf or pier in front of his land extending into the waters to the point where they are navigable. In the absence of such legislation or usage, however, the common-law rule would govern the rights of the proprietor, at least in those states where the common law obtains. By that law the title to the shore of the sea and of the arms of the sea and in the soils under tide waters is, in England, in the King, and in this country in the State. Any erection thereon without license is, therefore, deemed an encroachment upon the property of the sovereign, or, as it is termed in the language of the law, a purpresture, which he may remove at pleasure, whether it tend to obstruct navigation or otherwise."
The case of Shively v. Bowlby (152 U.S. [1893] 1) contains a most elaborate and painstaking discussion of the law upon this question, reviewing with much detail the decisions of the different states. That case came up from Oregon and the direct question involved was whether a donation land claim bounded by the Columbia river, acquired under an act of Congress while Oregon was a territory, passed any title or right in lands below high-water mark as against a subsequent grant from the state of Oregon pursuant to its statutes. The case involved a consideration of the common law upon the question here under discussion as it existed in England and was adopted in this country, and the opinion affirmed each of the following propositions:
1. In England, from the time of Lord Hale, it has been treated as settled that the title in the soil of the sea, or arms of the sea, below ordinary high-water mark, is in the king, except so far as an individual or corporation has acquired rights in it by express grant or by prescription or usage. It is equally *Page 95 well settled that a grant from the sovereign of land bounded by the sea, or by any navigable tide water, does not pass any title below high-water mark, unless either the language of the grant or long usage under it clearly indicates that such was the intention. By the law of England every building and wharf erected without license below high-water mark, where the soil is the king's, is a purpresture, and may, at the suit of the king, either be demolished, or be seized and rented for his benefit, if it is not a nuisance to navigation.
2. The common law of England upon this subject, at the time of the emigration of our ancestors, is the law of this country, except so far as it has been modified by the charters, constitutions, statutes or usages of the several colonies and states, or by the Constitution and laws of the United States.
3. The new states admitted into the Union since the adoption of the Constitution have the same rights as the original states in the tide waters and in the land below the high-water mark within their respective jurisdictions.
4. The jurisprudence of Oregon is based on the common law.
And, finally, as a general deduction that in a state like Oregon where there was no special legislation or usage, the common-law rule enunciated would govern the rights of the upland proprietor and he would not be entitled to wharf out.
In Cobb v. Commissioners of Lincoln Park (202 Ill. 427) there were under discussion the rights of an upland owner bordering on Lake Michigan, the question being whether such upland owner possessed an easement permitting him to build wharves over the submerged lands in front of him in order to reach the navigable water. The court, in a carefully prepared opinion, assumed the rights of a riparian owner upon the lake to be the same as those of such an owner fronting upon the sea. It decided that the principles of common law which were adopted in that state as they existed prior to March 24, 1606, were still applicable, there being no statute or usage which had modified such law, and then further that "A riparian owner had no right to build any structure on the submerged *Page 96 lands in front of his own lands unless he owned such submerged lands or had a license to do so. The title of the owner of such submerged lands is not burdened with an easement in favor of the owner of the adjoining upland to build wharves out to navigable water. Such being the common law it is the law of this state until it is altered by the legislature."
In Connecticut the well-recognized right of the upland owner to erect wharves is predicated upon general, immemorial usage rather than upon the common law. (East Haven v. Hemingway,7 Conn. 186, 203.)
In reviewing the decisions of our own state, I shall refer first to those which are in harmony with the English and American cases already cited, and then I shall attempt to analyze both the New York cases and some elsewhere wherein something has been said which the appellants regard as sustaining their position.
People v. Vanderbilt (26 N.Y. 287) was brought to restrain the defendant from proceeding to the erection of a pier extending into the North river and to compel the removal of the part already built as a public nuisance. Upon the trial, the defendant's counsel offered to prove that the proposed pier and crib were not and would not be when completed a nuisance or interference in any manner with the navigation of the river. The trial court rejected this evidence, holding that if the pier were unauthorized by law, it would be per se a nuisance. Upon appeal the court discussed the rejection of this evidence, saying: "The right of property in the soil or bed of a navigable river or arm of the sea, and the right to use the waters for the purposes of navigation, are entirely separate and distinct. The first of these rights is by the common law vested prima facie in the sovereign power. * * * The second is a right common to the whole people, and it is vested in the public at large. A purpresture is an invasion of the right of property in the soil, while the same remains in the king or the people. A nuisance is an injury to thejus publicum, or common right of the public to navigate the waters. * * * If the injury complained *Page 97 of be a purpresture, it may be abated and removed at the suit of the Attorney-General in England, and of course of the people in this state, whether it is a nuisance or not. * * * Being an encroachment upon the soil of a sovereign, like trespass upon the soil of a private individual, it will support an action irrespective of any damage which may accrue. But where the action is to remove a nuisance, which is not a purpresture, a nuisance in fact must in all cases be shown to exist." And it was held that the structure was a purpresture and liable to removal irrespective of whether it was or was not a nuisance.
Sage v. Mayor, etc., of New York (154 N.Y. 61) involved the question of riparian rights possessed by an owner of land bounded on the Harlem river, which is a navigable stream where the tide ebbs and flows. Judge VANN, manifestly after great research, discusses most thoroughly the origin and extent of these rights, and it is significant that after doing this in defining them he simply enumerates the right of access to the navigable part of the river in front of the riparian lands for the purpose of loading boats, drawing nets and the like, and does not anywhere include as one of the privileges or easements held by the riparian owner, the right to wharf out into the stream.
Hedges v. West Shore R.R. Co. (150 N.Y. 150) involved a controversy between a riparian owner upon the Hudson river and the defendant, which had built its road upon a structure of open piling below high-water mark in front of his premises under a privilege acquired from the state, leaving, however, to the riparian owner suitable and reasonable means of access to the channel. The extent of the rights of such a riparian owner were necessarily involved and fully discussed, and it is again significant that there is not included amongst them, but rather seems to be excluded from them, the right to wharf out into the stream, which right would almost necessarily have been interfered with by the railroad structure in question. The substance of the opinion upon this subject is fairly expressed by that portion of the head note *Page 98 which states as follows: "The owner of uplands bounded by the waters of a tidal river has a natural easement or right of access to the channel, but this does not include any right arising from the use of land under water or the bed of the river, below high-water mark."
It is also to be noted that the opinion in this case was written by the same judge whose expressions in the Rumsey andSaunders cases, hereafter to be referred to, are cited by the appellants as authority for their contention in favor of such right to erect a wharf.
Matter of City of New York (168 N.Y. 134) is the so-called "Speedway" case, where the city, by constructing a roadway along the Harlem river, had destroyed the riparian rights of the owners of uplands abutting on that river. The case naturally called for a consideration of what those rights were, and Judge WERNER, in a most careful and elaborate opinion, defines them (page 143) as follows: "The owner of uplands abutting upon a navigable river where the tide flows and ebbs, takes title only to high-water mark. While he does not own the tideway, or the lands under water beyond the same, he has the easement of passage and the transportation of merchandise, to and fro, between the navigable water and his land; to fish and draw nets; to land boats and to load and unload the same." There is no suggestion of the right to construct a pier or wharf.
The cases which are especially relied upon by the appellants as sustaining their position directly or indirectly rest upon the case of Yates v. Milwaukee (10 Wall. 497). Either that decision or some decision expressly based upon it furnishes the only important authority for the doctrine which they invoke, and I shall, therefore, consider it first. It was said in that case: "But whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river from the front of his lot, the right to make a landing, wharf or pier for his own use or for *Page 99 the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public, whatever those may be. This proposition has been decided by this court in the cases ofDutton v. Strong (1 Black, 25), and the Railroad Co. v.Schurmeir (7 Wall. 272)." This case related to rights of a riparian owner upon an inland navigable stream and not upon water where the tide ebbed and flowed, and between which kinds of water a distinction has at times been drawn. Furthermore, the only question involved was whether the common council of the city of Milwaukee could, by merely declaring a pier to be an obstruction to navigation and a nuisance, lay the right for removal, there being no evidence that it was in fact such obstruction or nuisance, and this was the precise issue determined by the learned court. (Page 505.)
Under these circumstances the decision as purporting to define the right of an upland owner, at least upon tide water, to build a pier into the navigable water, has been in effect comprehensively overruled by cases already referred to at length. (Shively v. Bowlby, 152 U.S. 1, 36, 40; Weber v. HarborCommissioners, 18 Wall. 57, 65.)
And in the Sage case (page 78) Judge VANN very pertinently says: "In Yates v. Milwaukee (10 Wall. 497) much was said that favors the theory of the plaintiff, but all that was decided is that a wharf built by a riparian owner on the bank of a navigable river in the State of Wisconsin under statutory permit cannot be declared a nuisance without a judicial trial."
The case of Ill. Cent. R.R. Co. v. Illinois (146 U.S. 387), which also is cited as an authority in some of the New York case hereafter to be referred to, requires very little consideration upon the point here involved. What was held in that case was simply that the railroad company, under express authority of the law, having constructed its tracks along the shore of Lake Michigan in such a manner as in no respect to interfere with any useful freedom of the lake for commerce, could not be regarded as having encroached upon *Page 100 the domain of the state in such a manner as to require the interposition of the court for the removal of the tracks.
Before passing to the analysis of other New York cases, it is proper to recall that in 1852, in Gould v. Hudson River R.R.Co. (6 N.Y. 522) in substance it had been held that the owner of lands on the Hudson river had no property in the shore between high and low-water marks, and, therefore, was not entitled to compensation when the same was taken for the construction of a railroad in such a manner as to shut him off from all convenient access to the water.
This doctrine had been doubted and criticised in various decisions before the decision of Rumsey v. N.Y. N.E.R.R.Co. (133 N.Y. 79), and the court in that latter case was fairly called upon to decide whether it would or would not follow theGould case, for practically the same question was presented in both. The important question involved was the general one, whether an upland owner had any easements and privileges for the destruction of which by the railroad company he was entitled to recover damages. The details of those rights, if any, were not specially in controversy or under consideration. No question of the right to construct a pier into the river was presented except as it might be incidental to and embraced within the general subject.
The court repudiated the doctrine of the Gould case, holding that the upland owner did have rights and easements, and then the judge writing the opinion by way of illustration quoted the remarks of Mr. Justice MILLER, in the case of Yates v.Milwaukee, already referred to. There was no other statement whatever in the opinion that an upland owner had a right to wharf out into the river, but upon the contrary, in summing up his conclusions, the judge who wrote said: "It must now, we think, be regarded as the law in this state that an owner of land on a public river is entitled to such damages as he may have sustained against a railroad company that constructs its road across his water front and deprives him of access to the navigable part of the stream."
The case of Saunders v. N.Y.C. H.R.R.R. Co. *Page 101 (144 N.Y. 75) involved a consideration of the obligations of a railroad company which had built upon land granted by the state between the upland and the usual place of access by an upland owner to the river, and it was held that such a grant by the commissioners of the land office did not extinguish or impair the easements or riparian rights of such an owner. Again, as in theRumsey case, the question actually involved was the general one of impairment of the rights and privileges possessed by the upland owner. The question was not as to the exact extent of those easements and especially the right to build a wharf into the river was not being considered.
Under those circumstances it is true that the opinion, being written by the same judge who had written in the Rumsey case, did state that such rights embraced the right to make a landing wharf or pier for the use of the upland owner or of the public. This statement however, was expressly based upon the proposition that such right had been affirmed in the Rumsey case and reaffirmed in the Illinois Central Railroad case. There was nothing to suggest the query whether this right to construct a pier was really included in the privileges of the abutting owner, but what was written was but a general definition of a class of rights which, by reference to the authorities cited, was assumed to include the wharfing privilege.
The question in Thousand Island Steamboat Co. v. Visger (179 N.Y. 206) was whether a riparian owner upon the St. Lawrence river, owning a dock erected upon land granted by the people of the state of New York for the purpose of promoting the commerce of the state and for no other object or purpose, had a right to the exclusive use of said dock, or whether it was open to the use of all who were engaged in promoting the purposes of the grant, namely, the commerce of the state. That was the precise question involved, and there was none about the right of the riparian owners to maintain their dock in the river. It is true that the opinion, speaking of the fact that the owners or their predecessors had originally built the dock before the grant by the state, *Page 102 did state that, "The proprietors of lands upon navigable waters are entitled to a right of access to a navigable part of the river and to the right to make a landing wharf or pier for their own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public whatever these may be," and in support of this proposition cited the Yates andRumsey cases. But no issue was being raised in this case as to the right to erect and maintain the dock. The only one was over its use as between the owners and the general public, and I think that this relationship was all that the judge who wrote had in mind when speaking of the right to build "subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public."
Thus we find that all of the expressions in these cases tending to support appellants' proposition are rather by way of illustration and amplification of what was essentially involved than otherwise, and moreover that directly or indirectly they are based upon the Yates case which, upon this point, can no longer be regarded as authoritative.
Some other cases have been called to our attention in the Appellate Division and at Special and Trial Term, where something has been said affirming the right to build a pier. Whatever was said upon this point was based especially upon the Yates case or upon one of the New York cases based upon that case, and with the exception possibly of the Mould case, what was said was dictum or part of some general statement of the privileges of a riparian owner and with nothing to suggest the specific question whether the wharfing right was really one of those privileges.
In the case of People v. Mould (37 App. Div. 35) it was held, by a divided court, that the state could not compel a riparian owner on the Hudson river to remove a wharf erected by him without having obtained a grant from the state in the shoal waters in front of his uplands and reaching the navigable part of the stream, on the ground simply that it was a purpresture *Page 103 when it was not shown that such wharf was actually a nuisance or an obstruction to navigation. The opinion upon that appeal extensively reviews the authorities upon this subject, the important ones of which have been analyzed in this opinion, and it does affirm the right of an upland owner to wharf out into the navigable water. In view of the space already devoted to the consideration of the authorities upon which this decision is based, it does not seem necessary to review it at length. I can only say that I do not regard its conclusions as sustained by the weight of authority or as furnishing a precedent which should be accepted by this court.
What has been said sufficiently indicates my opinion that the weight of authority sustains the proposition urged by the plaintiffs that under the common law as it prevailed in England and as we adopted and have recognized it in this country, at the time the grants were made to the parties and their predecessors, an upland owner did not have the right to build a wharf over the land below high-water mark into the water, and that in this state the common law has not been changed by statute or usage.
Therefore the judgment should be affirmed, with costs.
CULLEN, Ch. J., O'BRIEN and HAIGHT, JJ., concur with GRAY, J.; VANN and WERNER, JJ., concur with HISCOCK, J.
Judgment reversed, etc.