I am unable to agree with a majority of the court as to the disposition to be made of this appeal. The appellants owned an undivided one-half of pier 15, East river, which the city has taken in condemnation proceedings and for which an award of $100,000 has been made. They claim that the award is inadequate, inasmuch as they had a perpetual right to shed the pier, and the testimony on their part before the commissioners appointed to ascertain the value of the pier taken showed that if they had such right it was worth $140,000, while that on the part of the city valued it at $134,000. The sole question presented, therefore, by the appeal is whether the appellants did, in fact, have a perpetual right to shed the pier. If they did then the order confirming the report of the commissioners fixing the damage should be reversed and the matter sent back for a further hearing, otherwise it should be affirmed. No complaint is made but what a sufficient award was made for the shed itself, the complaint being directed simply to the right to perpetually maintain the same.
The shed in question Was erected, with the consent of the appel*508lants by their lessee, William P. Clyde & Co., under a license granted to it by the department of docks on the 6th of October, 1887. That license was granted under authority conferred upon the dock department 'by chapter 249 of the Laws of 1875, known as the “ Shedding Act,” as amended by chapter 435 of the Laws of 1883. This act authorized the department of docks to grant licenses to the owners, or lessees with the consent of the owners, of piers or bulkheads in the city of New York to erect and maintain upon them sheds for the protection of property subject .to the conditions and restrictions contained therein. Prior to the passage of this act there was no authority to give such permits and all structures erected upon piers prior to that time were unlawful. (People v. Mallory, 46 How. Pr. 281; People v. B. & O. R. R. Co., 117 N. Y. 150.) The license to Clyde & Co., which was in the form of a resolution, authorized it to erect and maintain a shed on this pier, but a provision was inserted therein to the effect that the license should not “ prejudice any right, title or interest of the city to the said pier of to any structures legally erected or that may be legally erected thereon, including the said shed.” The legal effect of a license of this character was passed upon in Kingsland v. Mayor (45 Hun, 198). It is true ,the shed there was erected outside the bulkhead line, and while the court held there was no power vested in the dock department under the Shedding Act to give such permits, nevertheless what was said as to what the dock department could do under that act is apjdicable here. At General Term Mr. Justice Daniels, delivering the opinion, referring to this subject, said: “This statute * * * provided for nothing beyond a license or authority to erect or maintain the sheds. It did not provide for vesting in the person to whom the privilege should be given any right to maintain the platform or shed for any particular period of time. But what was provided for was a license or authority'which it was declared should be subject to the conditions and restrictions contained in such license or authority.’ * * * It is manifest, therefore, that no property right Was designed to be or was in fact conferred ór created by this resolution. It was a privilege granted subject to the existing laws providing for this improvement of the water front of the city and made dependent by the resolution itself upon the pleasure of the board adopting it. And the right so to terminate it was exercised when this improvement was *509made in the year 1880. And in ending it in that manner no more was done than had the sanction of the law, as well as the condition on which the resolution was dependent.” This decision was affirmed by the Court of Appeals (Kingsland v. Mayor, 110 N. Y. 569), Judge Finch delivering the opinion, during the course of which he said : “ In 1875 an act was passed commonly known as ‘ the Shedding Act,’ which authorized the department of docks to grant permits for the maintenance and construction of sheds upon the piers or bulkheads, but these permissions were revocable in their nature without consideration and expressly subject to the rules and regulations of the department of docks to whose discretion the matter was confided.”
In 1871 (Chap. 574, amdg. Laws of 1870, chap. 137, § 99) the city was authorized to change docks and piers and the wharves of private owners were to be purchased by agreement or taken in the ordinary manner by proceedings under the right of eminent- domain. The act vested in the department of docks authority over the whole system, and contemplated their being subsequently acquired by the city. The license in question having been granted subsequent to the passage of that act was taken subject to it, but to remove any doubt as to the preservation of the city’s rights, a provision was inserted .that the granting of it should not prejudice any right, title or interest of the city to the said pier or to any structure legally erected or that may be legally erected thereon, including the said shed, and in this connection it must be' borne in. mind that the city never received any consideration for the permit, nor does it upon its face purport to be perpetual. The license was revocable at the pleasure of the city and it was revoked by institution of the proceedings by which the city obtained the title.
I am also of the opinion that the dock department does not now, and did not at the time the license in question was given, have power to grant a perpetual one. There is no statute specially conferring such power, and an officer or department of the city government ought not to be permitted to give away such valuable rights without the sanction of the Legislature, expressed in unmistakable language.
The order appealed from should be affirmed, with ten dollars costs and disbursements.
Order reversed, with costs, and case remitted to commissioners as stated in opinion.