First Construction Co. v. State

H. T. Kellogg, J.:

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 contained in the opinion of the Court of Appeals. (221 N. Y. 295.) There remained to claimant, therefore, as its sole reliance for proving title to rights over the lands involved, the statute known as chapter 491 of the Laws of 1884. Concerning this statute the Court of Appeals said: “ Therefore, the ultimate support of claimant’s claim of title to these premises and of its right to compensation therefor must be sought in the act of 1884 already quoted.” (221 N. Y. 310.)

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, when neither can operate except as a present grant of property never before granted, may seem somewhat shadowy. It is, however, a distinction necessitated by a constitutional requirement relating to the form which a statute must take. Because of this requirement, the act of 1884 must inform confirm, though to operate it must in fact convey. The inquiry then is whether prior grants referred to by the act of 1884 can be identified as the grants intended to be confirmed; if so, what rights were thereby intended to be conveyed, and whether the same have since been forfeited.

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 ” no grants whatsoever. Therefore, it seems to me conclusive that, if the act of 1875 may fairly be regarded as a counterpart of the act of 1873, so that the two together spell a grant complete in its terms, then that was the grant attempted to-be made which the act of 1884 in form confirmed.

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 and pier lines fixed in the report to be presented, “ subject, nevertheless, to the action of the Legislature at its next session.” Clearly the Legislature of 1875, though it was not a Legislature acting “ at the next session ” after the year 1873, when regarded from the view point of the Legislature of 1884, may be considered to have fixed the bulkhead and pier lines of Gowanus bay, in fulfilment of the call made by the Legislature of 1873, and in completion of the terms of a grant intended by it to have been made.

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 such hues received subsequent legislative approval. Even if the act of 1875 be taken as a modification in this respect of the act of 1873 that also was in the contemplation of the Legislature of the latter year. Certainly the variation does not destroy the theory that the Legislature of 1884 intended to make a grant by reference to the acts of 1873 and 1875 of the rights described by such acts when read together.

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 enactment which it pronounced had been lawfully made, namely, an enactment confirming a prior grant attempted to be made of an area less than the full area therein provided for. Consequently, even if the lines of the Vibbard map are not the lines of the Newton map, but lie interior thereto, the act of 1884 had the effect of conveying rights to the shore owners to fill up the lands bounded by such fines.

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. established the existence of a just cause of forfeiture, was .important in determining the value of the rights appropriated. (221 N. Y. 321.) Twenty-eight years had elapsed between •the granting of these rights in the year 1884 and their appropriation in the year 1912. Although the appropriated area consisted of 1,440,275 square feet, of which all but 85,000 square feet were submerged lands, only 29,250 square feet of lands previously submerged had been filled. If the submerged lands of the appropriated area are to be considered separately from the remainder of the area over which rights to fill were granted, then the filling done thereon may not have constituted substantial performance of the obligation to fill, or exhibited substantial progress towards making ■ the entire fill within a reasonable period. The case of claimant, therefore, to disprove the fulfilment of the condition of forfeiture may largely depend upon its right to have taken into consideration the work of improvement and filling performed along the entire water front covered by the grant.

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 the Erie basin and the second act with submerged lands within the Brooklyn basin, it would doubtless be true that, if these plans for harbor improvement had survived to the date of the appropriation, fillings in the Erie basin would not assist to disprove forfeiture in the Brooklyn basin, or vice versa. The act of 1875, however, materially altered these plans. Among other things it shoved the pier constituting the easterly bounds of the Erie basin several hundred feet to the east, and wholly destroyed the Brooklyn basin, providing in place of the latter a plan for a solid fill throughout its area, except two narrow slips 200 feet wide each, to run in-shore through the filled lands, the one for a distance of about 3,000 feet and the other for a distance of 2,500 feet, the one to be called the “ Hicks Street basin ” and the other to be called the “ Henry Street basin.” This act, in conjunction with the act of 1873, provided for piers, bulkheads, wharves, slips and fills over the entire area of submerged lands in front of the entire shore fine of the Beard property. It constituted a single grant or attempted grant of rights to fill upon an area more than 5,000 feet in width. It imposed, by implication, conditions in relation to fills covering the entire area. It was one project, one grant, one plan calling for but one undertaking. Clearly, a fill, made in accordance with law upon any part of the area, must apply to defeat forfeiture as to any other part. Moreover, the condition requiring the underwater lands granted to be filled must have been accompanied by a condition that ungranted lands owned by Beard between high and low-water mark be filled, in order that the improvement might become available. Consequently, in avoidance of the condition of forfeiture, fills made upon areas over which rights were not granted must also be considered.

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, the common-law right to build wharves and-make fills upon all the submerged lands adjoining, in order to improve the means of access and egress to and from the sea, not only for their own convenience, but for that of the public as well. (Town of Brookhaven v. Smith, 188 N. Y. 74.) Beard and his associates needed to make no purchases, voluntarily or by condemnation, if that right had been conferred upon them, in order to make available piers and wharves which might be constructed upon the underwater lands. In this respect they enjoyed a position not occupied by any other persons, not even by the State itself. Harbor improvements, therefore, in front of their shore, were likely to come with greater promptitude, as they would come with a fraction of the expense, from Beard and his associates, than from any other source, whenever an expanding commerce might render such improvements necessary or profitable. It was a matter, therefore, of encouragement and inducement to be given rather than exactions to be demanded which prompted the Legislature of 1884 to pass legislation conferring rights upon Beard and his associates. The rights to be conferred, which were under consideration by that Legislature were not at all in a like situation with franchises which might have been granted to corporations to build railways. In the first place, the rights were little more than those already possessed, and the legislation little more than a definition of such rights. In the second place, franchises to build railways would involve the lands of persons other than grantees, and would require the exercise of the somewhat tyrannical power of eminent domain. Such rights and powers justly should terminate if not promptly exercised. In the third place, a railway must be a completed whole before it may be used. That is not the case where an extensive wharf - ing enterprise is involved. This was a gigantic undertaking to be performed by individual shore owners out of their private funds. Clearly it was not the purpose of the Legislature to require its execution in haste or to demand that the building of wharves and piers should outstrip the needs of commerce which might bring vessels to these shores. These reasons impel me to believe that the Legislature of 1884, in granting these rights, intended that the period during which they might be exercised should be of the broadest character. This belief is strengthened when it is considered that (a) the Legislature which granted them was fully aware that the same grantees had failed to exercise in full similar privileges formerly attempted to be conferred for more than thirty long years, and (b) their grant was unaccompanied by an express condition of limitation, but on the contrary the lands subjected to the rights were themselves attempted to be granted 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 mark were filled in. The area thus found to have been filled after the year 1884 would amount to several city blocks. We think, however, that in determining the question of forfeiture it would be too narrow a view to consider that only the fills made and the work done since the passage of the act of 1884 should be considered. We believe that in determining how near completion the gigantic task of making this harbor improvement had been brought in the year of the appropriation regard may be had for all the work done upon the entire area over which rights were granted and upon tidewater land adjoining, whether performed before or after the year 1884. In the view which we take of the case the claimant has shown substantial progress towards completion within a reasonable period, and is, therefore, entitled to the compensation awarded.

The award should be affirmed.

All concur, except John M. Kellogg, P. J., dissenting, with an opinion, in which Kiley, J., concurs.

* See Laws of 1872, p. 2192.— [Rep.