(dissenting):
The learned court at Special Term announced in its opinion that “ No compensation has been awarded for riparian rights.” If, therefore, the claimant had any riparian rights, the decree must be reversed and the matter remitted to the Special Term in order that an appropriate award may be made for such rights as part of the compensation to be awarded for the land condemned.
I am unable to agree with the conclusion reached by the majority of the court as to the force and effect to be given to the agreement between Butterly and the city of New York and to the deeds of exchange executed thereunder. The sole effect of these documents, as I view them, was to merely change the location of the high-water line. Butterly owned four blocks of upland fronting on the high-water line of the Harlem river, with the usual riparian rights. By the agreement which he made with the city, Butterly, who owned to the natural high-water line, agreed to the substitution of an artificial line for such natural line. When he conveyed to the city the land to the east of that line, he conveyed land under water. The riparian rights which he conveyed were *39“ all riparian rights incident thereto,” that is, to the land thus conveyed, which was land under water.
Butterly remained the owner of the shore line. He owned to the agreed artificial high-water line and never released any of his rights appurtenant to his ownership of the west shore down to such line.
The city itself recognized the claimant’s title as riparian owner for by the application made by it to condemn the land owned by claimant, in this proceeding, the land was described as running, as to two of its boundaries: “ thence easterly along the southerly side of 206th Street one hundred and fifty (150) feet to the high-water line of the Harlem River, as fixed, determined upon and established and duly approyed by the Commissioners of the Sinking Fund of The City of New York by resolution adopted October 19, 1916; thence southerly along said high-water line to the northerly line of West 205th Street.”
Being the owner to the high-water line, and the only owner of the upland, claimant as successor in title to Butterly, in my opinion had, as riparian owner, the following rights: “ He has the right of access to the channel or the navigable part of the river for navigation, fishing and such other uses as commonly belong to riparian ownership, the right to make a landing wharf or pier, for his own use, or for that of the public, with the right of passage to and from the same with reasonable safety and convenience. A pier may be constructed without a grant from the State of the land under water upon which it rests. In this country it has generally been held that the upland owner has the right of constructing a proper pier, or landing, for the use of himself and the public, subject to the general regulations prescribed by the State or the United States. What form or shape or size the pier may take varies with use and necessity. The upland owner has no right to fill in the land under water for purposes foreign to commerce and navigation.”
Further, the owner has “ the right to wharf or pier out to the navigable part ” of the Harlem river. “ They could build piers which would rest upon the land under water, or they could build wharves and erect bulkheads. They also could fill in marshy ground and erect a substantial wharf for the use of navigation and commerce connected with their business. (People v. Mould, 37 App. Div. 35.) All these things could be done under the implied permission of the people of the State of New York by reason of the law pertaining to upland owners, i. e., the law of riparian rights.”
These rights of an upland owner are defined as above in Hinkley v. State of New York (234 N. Y. 309),
*40Furthermore, I believe that the rights of the riparian owner are not limited to the bulkhead line established by the city of New York, but extend to the bulkhead line approved by the Secretary of War. (Appleby v. City of New York, 235 N. Y. 351; Matter of Appleby v. Delaney, Id. 364.)
If the claimant as riparian owner has the rights heretofore enumerated, it is clear that they are of value and that an award should have been made therefor.
I, therefore, dissent from the affirmance of this decree, in so far as it is appealed from by the claimant.
McAvoy, J., concurs.Decree affirmed, without costs.