In my judgment, this matter should be sent back to the commissioners to make a .substantial award to the American Ice Company, for it was finally determined in the case of Knickerbocker Ice Co. v. Forty-second St. R. R. Co. (176 N. Y. 408) that the plaintiff therein, which was the predecessor in interest of the American Ice Company, had property rights which could not be taken possession of or resumed by the city without proper compensation being made. It appears that the right of one Lindsley, subsequently acquired by the Knickerbocker Ice Company, to maintain a pier and to enjoy the rights pertaining to such maintenance, was partly conferred by a deed executed and delivered in the year 1862, pursuant to asserted authority derived from the common council of the city of New York, and it is now urged that such authority was not conferred, for the reason that the resolution was hot adopted by a municipal legislative body constituting a common council at the time such resolution is said to have been passed. I am of the opinion that that is not an- open question in this court or in the Court of Appeals, either as between the American Ice Company and the Forty-second Street Railroad. Company, or as between those corporations and the city. Mr. Justice Scott, in his opinion on the present appeal, is in error in- the statement that “ the question now discussed was not considered or discussed ” in the case of Knickerbocker Ice Co. v. Forty-second St. R. R. Co. It was discussed and considered in this court and in the Court of Appeals, although specific mention is not made of it in the opinion handed down in either court; but it was elaborately argued in this court on the points of counsel, namely, point 5 of counsel for *704the city, when the case was in this court,*: and in. point 6 of counsel for the city and in subdivision G, point 3 of counsel' for,the Forty-second Street Railroad Company, when the cause was in the Court of Appeals. (Record of Court of Appeals Cases, vol. 87, Bar Association Library, New York.†)
In the Court of Appeals construction Was given to the deed of 1852, and it is said in the opinion of the - court that while various. matters referred to were inconsistent with the idea that the grant. of 1852 conveyed an absolute fee, yet “ they speak with most persuasive force' of the real purpose and effect of the, grant, which' was to convey to the grantee the right to maintain a pier, and to collect wharfage,, etc,, at the foot of Forty-third street'in the Hudson river, wherever that- point., should be located by lawful authority. It was the ■ incorporeal hereditament attached to the fee,, and not the fee itself, that. was conveyed: * * * The plaintiff, as the grantee’s successor in title, has the right to follow the lawful extension of Forty-third street for the purpose of maintaining a pier and collecting its revenues.” If I understand aright the decision of the Court of Appeals, the effect of the deed of 1852' was declared, and it cannot be that that court would have adjudged that the Knickerbocker Ice Company had property rights which could not be taken without compensation if the original grant under which those rights were acquired was invalid and conferred no title at all, for the point was plainly before that court, earnestly urged and necessarily required consideration.
In view of the divergence of opinion concerning the question presented by this record, if either-party desires, we will certify that question to the Court of Appeals for its consideration.
The order should be reversed and the matter, sent back"to the commissioners.
Laughlin and. Houghton, JJ., concurred; - Scott and Lambert, JJ.,-dissented. ■
See Sup. Ct. Cas. and Briefs, vol. 5068; case 1, N. Y. State Law Library.— [Rep.
Id. vol. 2810, No. 1, N. Y. State Law Library.— [Rep.