This case was before this court in 174 Appellate Division, 560, and before the Court of Appeals in 221 New York, 295. The extended consideration which it has already received makes an elaborate statement of the facts superfluous, and has materially restricted the legal questions necessary to be examined. The subject of the claim is underwater lands in Gowanus bay in Brooklyn, N. Y., appropriated by the State. An award was previously made on the theory that the claimant owned the fee in the lands. This award was made on the theory that it owned merely the right to fill and build piers and wharves thereon. The former award was for $1,081,516.50, with interest, and the present award is for $997,066.75, with interest.
The Court of Claims has made the following finding: “ That so far as the following acts of the Legislature purport or attempt to grant property rights in and over the appropriated area to private persons they were bills appropriating public property for local or private purposes and were unconstitutional and void for a failure to receive the assent of two-thirds of the members elected to each branch of the Legislature in the years when the same were passed, viz.: (1) Chap. 202, Laws of 1847; (2) chap. 83, Laws of 1851; (3) chap. 184, Laws of 1851; (4) chap. 763, Laws of 1857; (5) chap. 480, Laws of 1862; (6) chap. 481, Laws of 1862; (7) chap. 856, Laws of 1866; (8) chap. 702, Laws of 1873; (9) chap. 398, Laws of 1875.” This finding was in perfect accord with many expressions
Chapter 491 of the Laws of 1884, unlike the acts mentioned above which preceded it, was not unconstitutional by reason of deficient assents, for it was passed by a vote of two-thirds of the members of both branches of the Legislature. It was unconstitutional, however, in so far as certain things therein attempted to be enacted transcended the announced purpose of its title. It is provided in section 16, article 3 of the Constitution: “No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title.” The title of the act read: “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.” While its title thus expressed but one subject the enactment which followed embraced three subjects. These were stated by the Court of Appeals to be as follows: “ It purports to extend the area covered by prior acts to the newly-established bulkhead fine. It attempts to amplify what we have held to be a privilege or right or franchise into an estate in fee. It then, except for this extension and amplification, does what was fairly disclosed in the title — ratifies and confirms prior grants.” (221 N. Y. 320.) The court then proceeded to hold that the only enactment which was within the title, and, therefore, within the Constitution, was that which ratified previous grants, saying “ that this statute may be allowed to operate to the extent of confirming the grants previously made and thereby eliminating the defect of lack of the necessary votes, even though it is unconstitutional in respect of the other purposes to enlarge those rights.” (221 N. Y. 321.) The distinction drawn between an act which presently conveys rights presently described and an act apparently confirming a void act attempting a conveyance of rights formerly described,
The grants referred to by chapter 491 of the Laws of 1884 are stated in its title to be “ certain grants made in pursuance of section three of chapter seven hundred and two of the laws of eighteen hundred and seventy-three.” The words “ in pursuance ” would seem to indicate that the Legislature of 1884 considered that the act of 1873 was in itself a grant deficient in terms, or, if not deficient, then a grant requiring modification to meet with its approval. Turning to the act of 1873 we find that it uses words expressing an act of grant of property rights, but fails to describe or locate the premises over which the rights are attempted to be granted. It purports to make a grant in accordance with the terms of a report of a board of officers not yet filed. It purports to grant rights therein to be described only upon condition that such report is afterwards actually filed, and that this report is adopted by the Legislature of the following yéar. It was, therefore, in respect to its terms an incomplete grant requiring further legislative action to complete it. The Legislature of 1884, which clearly recognized this fact when it made confirmation of grants “ in pursuance ” of the act of 1873, must also be credited with knowledge of all legislation intermediate the years 1873 and 1884, and with a consciousness of the fact that during this period no act was passed completing the terms of a grant attempted to be made by the act of 1873, or otherwise making an independent grant, except the act known as chapter 398 of the Laws of 1875. Unless, therefore, the Legislature of 1884 intended to make reference to the act of 1875 as well as to the act of 1873 it used words which were meaningless when it sought to ratify grants “ in pursuance ” of the act of 1873, and in spite of its own words intended to “ ratify and confirm ”
The two acts disclose internal evidence of their interdependence and interrelation. While the act of 1873 contains words of grant, it fails, as before stated, to describe the thing granted. On the other hand, the act of 1875 fails in granting words, but is replete with words of description. Thus each is incomplete, but joined together each supplies that which was lacking in the other. The act of 1873 refers to a report of a board of officers appointed by the President of the United States, pursuant to an act of the Legislature passed April 6, 1872,* to fix the harbor lines of the harbor of New York on the Brooklyn side. The act of 1875 refers to a report made by the same board. The report referred to by the act of 1873 was a report “ of April five, eighteen. hundred and seventy-three, and April seven, eighteen hundred and seventy-three.” The act of 1875 refers to a report of the same officers “ dated April fifth, eighteen hundred and seventy-three.” The act of 1873, after adopting the report as to other harbor lines than those of Gowanus bay, which are here involved, relates that the board has determined to withhold their report as to Gowanus bay, although then in possession of sufficient data to make it, until a future occasion. The act of 1875 recites that the board of officers has made a report on Gowanus bay dated April 5, 1873, and then proceeds to enact a law establishing the bulkhead and harbor lines as therein reported. It would seem, therefore, that the report acted upon by ■ the Legislature of 1875 was the delayed report referred to in the act of 1873. Even if the Legislature of 1873 anticipated that a report, not in accordance with the delayed report, would be submitted, they placed no restrictions upon the board of officers, and adopted in advance any report which they might make, and this approval was sufficient to comprehend the report dated April 5, 1873, which was actually adopted. The act of 1873 purported to grant rights to fill to the bulkhead lines
The State calls attention to the particular words used in section 3 of the act of 1873, which so far as material read as follows: “ It is further enacted upon the presentation of the report of the said board * * * recommending * * * bulk-head and pier lines in Gowanus bay * * *, it shall be lawful for the owners of real estate fronting on the water * * • * to construct and maintain bulk-heads, or wharves and piers, of the width and at the intervals prescribed by the said act of April seventeen, eighteen hundred and fifty-seven; and to fill in the same on the lands under water in front of their lands to the exterior bulk-head and pier lines so to be recommended, subject, nevertheless, to the action of the Legislature at its next session.” The act of 1857 (Chap. 763) was an act making general provision for harbor lines throughout the harbor of New York. It is a fact that it did provide for piers generally “ which shall not exceed seventy feet in width respectively, with intervening water spaces of at least one hundred feet.” It is argued that as the act of 1875 provided for piers several hundred feet wide with intervening water spaces two hundred feet wide, it was not in consonance with the act of 1873. It seems to me that the argument is faulty in that while the act of 1873 did by reference name piers and water spaces of less dimensions it ignores the fact that the rights granted were “ to fill in the same on the lands under water * * * to the exterior bulk-head and pier lines so to be recommended [in the delayed report], subject, nevertheless, to the action of the Legislature at its next session.” The Legislature may have contemplated that the report would recommend the narrow piers and spaces. It, nevertheless, provided that the lines actually recommended "should constitute the lines up to which the fillings might be made, provided
The State also calls attention to the fact that the bulkhead and pier lines given in detail by the act of 1875 were finally described by it as follows: “ the new lines hereby established-being shown on a map entitled, ' map showing plan for the improvement of the water front 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. Yibbard, city surveyor.’ ” It argues that as the map adopted by the act of 1884 was a map made by John Newton the Legislature could not have intended to make confirmation of rights granted to fill lands up to the lines shown on the Yibbard map. The argument is answered by the following finding made by the Court of Claims: “ That the Yibbard map, dated March 1, 1875 (State’s Exhibit No. L.), shows the pier and bulkhead lines established by chapter 398 of the Laws of 1875. The Newton map (State’s Exhibit No. V.) referred to in chapter 491 of the Laws of 1884 shows the exterior boundary fine which in front of the appropriated area is the same as the exterior line shown on the Yibbard map and laid down by chapter 398 of the Laws of 1875. This line was approved by the Secretary of War March 4, 1890.” The act of 1884 establishing the Newton map makes this provision: “All grants of land under water within or to the exterior boundary line appearing upon said map and report made by the State, are hereby made to extend by the same course and direction to such exterior boundary line, and are hereby ratified and confirmed as thus extending to the grantees thereof, and their assigns in fee simple.” This was the clause which the Court of Appeals stated disclosed a purpose to accomplish three ends, namely, to confirm a previous grant, to extend the area of the grant, and to enlarge the estate granted into a fee. It was from this clause that the Court of Appeals extracted a single
There is one further reason, impelling the thought that the act of 1884 was intended to make confirmation of the act of 1873 as supplemented by the act of 1875. There was a statute intermediate the act of 1873 and the act of 1884, which, while it made no grants, did provide for the closing and opening of certain streets within the area described in the act of 1875. This act was chapter 327 of the Laws of 1876, and amended section 2 of chapter 398 of the Laws of 1875 in the particulars mentioned. In denying a claim of this claimant to these street areas the Court of Appeals said: “ This would virtually have amounted to a repeal of the act of 1876 and we think it is much more reasonable to interpret the act of 1884 as confirming rights granted to claimant’s predecessor under the act of 1873, less and excepting therefrom the area which intermediate the two acts had been appropriated by the State to street purposes.” (221 N. Y. 323.) Thus the Court of Appeals held that an amendment to the act of 1875 was in effect an amendment to the act of 1873. This would seem to' be a holding that the act of 1873 plus the act of 1875 less the act of 1876 constituted the grant confirmed by the act of 1884.
The act of 1884, through confirmation of grants attempted to be made by the acts of 1873 and 1875, granted to William Beard and his associates, from whom this claimant derived title, rights to build docks, and piers, and make fills, upon lands under water, extending along a stretch of shore above low-water mark, belonging to Beard and his associates, which had a continuous frontage of more than 5,000 feet. • The frontage of the appropriated area was not more than 600 feet. These rights were subject to a condition subsequent of forfeiture for failure of exercise within a reasonable time. (221 N. Y. 317.) While no proceedings to declare a forfeiture have ever been taken, the question, whether the facts proven.
Chapter 398 of the Laws of 1875, which furnishes the description for the grant made by the act of 1884, was by its title declared to be an act to amend chapter 480 of the Laws of 1862 and chapter 856 of the Laws of 1866. Both of these acts purported to grant to William Beard and his associates rights to build wharves and piers, and to make fills of submerged lands up to certain bulkhead and pier lines thereby laid down. The first act dealt with what is known as the “ Erie basin.” It called for a breakwater pier 250 feet wide to be projected from the Beard shore at a point slightly west of its center, for a distance of more than 1,800 feet into the waters of the bay, with an arm extending from its end southwesterly for a distance of about 800 feet, and then northwesterly for a distance of more than 2,000 feet, thereby forming a huge water basin for vessels. The second act called for a breakwater pier 300 feet wide, running out from the shore, along the easterly line of the pier established by the act of 1862, for a distance of about 1,800 feet, to be connected at its end with a breakwater arm extending on a slight curve in a northeasterly direction for about 2,500 feet, so as to form another basin for vessels lying just east of the Erie basin, to be called the “ Brooklyn basin.” As the first act dealt exclusively with submerged lands within
William Beard became the owner of a portion of the shore of Gowanus bay as early as the year 1847. Soon afterwards he and his associates had acquired title to all the uplands, extending for more than a mile along the submerged area over which rights have been granted. They became owners, also, of wide spaces of marshy and drowned lands, between high and low-water mark over which the tide ebbed and flowed. Independently of a grant from the Legislature, they long before possessed, in connection with their lands thus owned in fee,
William Beard, his associates, and his successors, had, at the time of the appropriation, brought this gigantic' task nearly to fruition. They had built a pier forming the easterly, southerly and westerly boundaries of the Erie basin. This required a fill, made upon submerged lands, to bring the pier to the surface, which was more than 200 feet wide and more than a mile long. They had dredged the Erie basin to a depth which made it a harbor for deep sea vessels, having a surface of more than 100 acres. They had built numerous small piers and sea walls within the Erie basin. They had built warehouses and other structures upon the docks erected. They had, to the north of the Erie basin, to the north of the appropriated area, and to the east of the Henry Street basin, made fills upon submerged and tidewater lands, the extent of which was large. They thereby brought to street level from an underwater level an area of land equal to more than twenty city blocks of the city of Brooklyn. They thereby made available any improvements which might be made upon the appropriated area. Without this immense filling the wharves and docks to be erected by the State upon the appropriated land could never be accessible, so that to-day the appropriating State enjoys the benefit of their work thus performed. . The Court of Claims has found that a substantial part of the work thus performed was done after the year 1884. It found that the Erie basin was completed after the year 1900. It found that between the years 1884 and 1900 the lands between Lorraine street and Bay street, Hicks street and Henry street were filled in. It found that within said period the lands between Lorraine street and Bay street, Columbia street and Henry street were filled in. It found that after 1900 a fill south of Halleck street and between the Erie basin and Columbia street was made. It found that after such year the lands between Halleck street and Columbia street and high-water
The award should be affirmed.
All concur, except John M. Kellogg, P. J., dissenting, with an opinion, in which Kiley, J., concurs.
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See Laws of 1872, p. 2192.— [Rep.