(dissenting). The city of New York has appealed from so much of the last partial and separate final decree of the court at Special Term as ehminated from the proceeding to condemn real property for the purpose of creating Inwood Hill Park, certain lands under water between the mean high-water line and the United States bulkhead line of the Hudson river granted to the city of New York by the Dongan and Montgomerie charters and by the State of New York by various legislative enactments. *595The lands under water in question which the Special Term, in the last partial and separate final decree appealed from, hold could not be taken by the city of New York, and that the city could not receive compensation therefor and assess such compensation upon various neighboring properties benefited thereby, were known as damage parcels Nos. 42 and 43. Two main questions are presented upon this appeal: First, as to whether or not the lands under water represented by said damage parcels can be taken by the city in condemnation proceedings; and, secondly, whether the city is entitled to damages by reason of such taking.
By resolution of the board of estimate and apportionment,, adopted March 17, 1916, certain lands, including said lands under water, were taken and laid out on the city map as a public park, known as Inwood Hill Park. The resolution of the board of estimate was approved by the mayor, and by a further resolution of the board of estimate and apportionment adopted pursuant to the provisions of the Greater New York Charter, as amended, it was resolved that the said real property required to form said Inwood Hill Park should be taken by condemnation proceedings, and by resolution duly adopted, the board of estimate and apportionment requested the corporation counsel of the city of New York to apply to a Special Term of the Supreme Court to have the compensation to which the owners of the property taken were justly entitled ascertained and determined by said court without a jury, and that the court should assess the costs and expenses of the proceeding, and to take whatever proceedings were required to acquire title in the name of the city of New York for the use of the public for the purpose of opening and extending said Inwood Hill Park in the borough of Manhattan, New York city. By resolution adopted at the same time the board of estimate and apportionment directed that five per cent of the entire cost and expenses of the proceeding should be laid upon a primary area benefit therein described and forty-five per cent upon a secondary area benefit; that forty-five per cent, of the expense and cost be laid upon the borough of Manhattan, and the balance of five per cent on the borough of The Bronx. Pursuant to said resolution the city applied to the Supreme Court to have the compensation which should be made to the respective owners of the real property acquired ascertained and determined, and to have the cost and expense of the proceedings assessed upon the property within the area of benefit in accordance with the resolution of the board of estimate and apportionment. On November 21, 1916, the city’s application was granted by an order of the Special Term. Thereupon the board of estimate and apportionment on November 23, *5961917, adopted a resolution to the effect that the property within the lines of Inwood Hill Park, including the damage parcels in question, vested in the city of New York. There were, however, excepted two small damage parcels, Nos. 24 and 25, which the State at that time had taken as a part of the Barge canal system, but which later were relinquished by the State, and damages assessed with reference thereto. When the proceeding came on for trial the learned justice presiding at Special Term awarded the city of New York for the land under. water, known as damage parcel No. 42, $251,707.26, and for the land under water known as parcel damage No. 43, $8,054.20. Thereupon, by resolution of the board of estimate and apportionment, the Supreme Court, pursuant to section 1003 of the Greater New York Charter, as amended, was authorized to file a tentative decree as to the damages embracing certain of the parcels of uplands taken in the proceeding and a first partial and tentative decree as to said certain parcels of land was filed in the office of the clerk of New York county on May 10, 1920. A hearing was had thereon, objections being made to said decree, and the court made and signed a first partial and separate final decree and the same was duly filed in the office of the clerk of New York county on June 22, 1920. Subsequently on November 19, 1920, the board of estimate and apportionment authorized the Supreme Court to file a tentative decree as to damages with reference to all the remaining uplands, except such as were owned by the city of New York, and pursuant to such resolution the Supreme Court made a second partial and separate tentative decree with reference thereto. This decree, after objections thereto were heard, was signed by the court and filed in the office of the clerk of New York county. The said two partial and separate final decrees covered all of the property taken in the proceeding, except that owned by the city of New York, damage parcels Nos. 42 and 43, land under water, and involved in the appeal herein, and certain other small damage parcels. On June 26, 1923, the court made and filed a last partial and separate tentative decree embracing the two damage- parcels Nos. 42 and 43, which decree was filed in the office of the clerk of New York county on July 31, 1923, and notice of the filing of the same was duly published in the City Record. Objections were made to said last partial separate tentative decree by' various owners of the property assessed in the proceeding. It was the contention of these objectors that the sums assessed on their property as benefit included improperly the awards made by the decree to the city *597of New York for its lands under water between mean high-water line and the United States bulkhead line. It was the contention of the objectors that there was no authority in law for the taking of such lands in the condemnation proceeding for park purposes, and that, even if taken, the city should not have been awarded any damages by reason thereof, it then being itself the owner of the land under water, subject to the right of the people of the State to use the same for navigation purposes. Said objections coming on to be heard, the court sustained the same and held that the city had no authority to acquire in this proceeding for park purposes lands under water which the city held between mean high-water line and the United States bulkhead line of the Hudson river; and in the last partial and separate final decree, appealed from herein, the court eliminated from the proceeding the said land embraced in said damage parcels Nos. 42 and 43, and struck out the awards which it had made for said land and which altogether amounted to $259,701.46. The city appeals from such part of the last partial and separate final decree as eliminated from the proceedings the said lands covered by damage parcels Nos. 42 and 43. I am of the opinion that the court, in its last partial and separate final decree, was entirely correct in eliminating from the decree the parcels in question and in denying the city any damages by reason of the taking of the same.
The lands under water embraced in said damage parcels in question are held by the city under grants contained in the Dongan and Montgomerie charters and by various legislative enactments whereby the city was given a proprietary ownership in lands under water about the city of New York, subject, however, to the right of the people of the State to use said lands for navigation purposes. Excepting in certain instances where specific grants have been made by the Legislature to the city, the Legislature has refused to take away from the people the use of the water front about the city for purposes of commerce. The city relies upon the provisions of section 970 of the Greater New York Charter for authority to have awarded to it in this proceeding compensation for the taking by it of the lands under water for park purposes. Section 970 of the Greater New York Charter provides as follows:
“ § 970. The city of New York may acquire title either in fee or to an easement, as may be determined by the board of estimate and apportionment, for the use of the public, to all or any of the real property required for streets, [and court-yards abutting streets, and for] parks, parkways, playgrounds, approaches to bridges and tunnels and sites or lands above or under water for bridges and tunnels, and sites or lands above or under water, *598for all improvements of the navigation of waters within or separating portions of the city of New York, or for the improvement of the water fronts of the city of New York, or part or parts thereof, heretofore duly laid out upon the map or plan of the city of New York, of the city of Brooklyn, or Long Island City, or of any of the territory consolidated with the corporation heretofore known as the mayor, aldermen and commonalty of the city of New York, or hereafter duly laid out upon the map or plan of the city of New York, as herein constituted, and cause the same to be opened, or acquire title as above stated to such interests in real property as will promote public utility, comfort, health, enjoyment, or adornment, the acquisition of which is not elsewhere provided for.” (See Laws of 1901, chap. 46G, § 970, as added by Laws of 1915, chap. 606; since amd. by Laws of 1917, chap. 631, and Laws of 1922, chap. 563.) The words within brackets were added to the section after the proceedings herein were instituted, and the phraseology was altered in 1922 by omitting the word in italics and by changing the punctuation.
It will be noted that under the section quoted the city of New York is only given authority to acquire certain lands under water for the purposes of bridges and tunnels, neither of which is involved in the present proceeding to take for park purposes.
I am unable to see how the city, which now owns the land under water, subject to the public easement therein, can have any right to take from itself and transfer to itself the said lands for other public uses. The city is the trustee of the lands under water for the benefit of the public. It holds said lands and may, as required, improve the same in aid of commerce and navigation. None of these purposes are infringed in any way by including said lands within the boundaries of the park. They may not, however, be filled in or used in any way destructive of the public rights therein. The city loses nothing because the land under water is included within the boundaries of the park as laid out on the city map, and the property owners gain absolutely nothing thereby, and should not be assessed by reason thereof. The fact that the lands under water may not presently be required for the purposes of navigation is no assurance that they may not hereafter be needed for such purposes. The sole purpose of the granting to the city by the Legislature of the lands in question was so that the city might improve navigation facilities when required. So far as this proceeding attempted to take for the city the land under water for park purposes, which land the city already owned, it takes nothing from the city, and it confers no rights or benefits upon the property owners sought to be assessed therefor.
*599The appellant claims, first, that the objectors have no standing in court, and that they have waived their right to raise the question as to the authority of the city to take the lands under water. Under the practice the owners of the various neighboring parcels of property to be assessed for such improvement could not be and were not properly made parties to the proceeding. They are over 16,000 in number, and the first opportunity they had to be heard was upon the coming in of the final last partial and separate final decree. They were not parties to the proceeding and were not bound thereby. As soon as it was determined to include in the property taken the lands under water and to compensate the city in $259,000 and over therefor and to assess the same upon the adjacent property owners, they came forward and objected, as they had a right to do. That the objectors have a right to appear in opposition to the granting of the final decree seems to have been clearly held in Matter "of City of New York (Crescent St.) (217 N. Y. 294). It seems absurd to say that if the city is taking property which it has no right to acquire, or any more than nominal damages are awarded for taking of land which the city already owns, the persons ultimately affected by such action should not have a right to be heard. In the order of condemnation, which the city urges is conclusive upon the objectors, the lands in question are not included, as the application for the order expressly excluded therefrom lands already acquired by the city.
It seems to me that the whole question comes down to the proposition that the lands in question sought to be taken are by the city inalienable. If the city cannot sell or dispose of said lands, how can the city, through the institution of this proceeding, work such alienation? It was held in Sage v. Mayor (154 N. Y. 61, 80) that “ The purpose for which the supreme authority holds the title to lands under tidewater is inconsistent with the power to grant any easement or right to those lands that will prevent it, when the necessities of commerce demand, from ‘ wharfing out ’ to deep water, so that vessels can load and unload and the interests of navigation be promoted. * * * The permanent control of navigable waters, if alienable at all, should only be so by an instrument showing a clear and undoubted intention to that end, and in the absence of express language the strict construction required by law in favor of the sovereign, as trustee, limits the effect of the grant by reserving or excepting therefrom the right to fill in the land out to deep water and build wharves thereon in aid of navigation and as an indispensable incident to commerce.”
In Knickerbocker Ice Co. v. 42nd St. R. R. Co. (176 N. Y. 408) the Court of Appeals said (at p. 417): •“ The title of the city of *600New York in the tideway and the submerged lands of the Hudson river granted under the Dongan and Montgomerie charters and the acts of the Legislatures of 1807,1826 and 1837, was not absolute and unqualified, but was and is held subject to the right of the public to the use of the river as a water highway. * * * The city holds the title which it never had the right to alienate.” Furthermore, the Legislature has expressly provided in section 71 of the Greater New York Charter (Laws of 1897, chap. 378; Laws of 1901, chap. 466) that “ The rights of the city in and to its water front, ferries, wharf property, land under water, public landings, wharves, docks, streets, avenues, parks, and all other public places are hereby declared to be inalienable.” (Italics are the writer’s.) In other words, the rights of the city to land under water are inalienable so far as the uses and purposes for which they are given to the city are concerned. In Ackerman v. True (175 N. Y. 353) the Court of Appeals, considering section 71 of the Greater New York Charter above quoted, held that a permit issued by the commissioners of parks having jurisdiction over Riverside Drive was insufficient to justify an encroachment upon the drive by a building. In that connection the Court of Appeals, by Judge Martin, said (at p. 364): “ Any such construction of that statute would result in practically annulling that portion of the charter of Greater New York which provides that streets and other public places in the city shall be inalienable. (§ 71.) Although it is true that the title of the streets in the city of New York is in the municipality, that title is held by it in trust for public use, and not even the municipal assembly has authority to permit permanent encroachments thereon.”
In Matter of City of New York (168 N. Y. 134) Judge Werner wrote (at p. 145): “ In Bedlow v. N. Y. Floating Dry Dock Co. (112 N. Y. 273) the late Chief Judge Ritger in referring to the scope and effect of the Dongan and Montgomerie grants said: ‘ These grants were obviously made to extend municipal control over said lands and enable the city to regulate the erection of necessary structures upon the land under water around the island, with a view of promoting facilities for the growing commerce and trade of the port of New York, and to regulate and preserve the rights of riparian owners in such lands' and the navigable waters covering them. * * * It has been sometimes said that the ownership of the fee in such lands gave the city, as matter of legal right, authority to erect and build such structures thereon as they *601saw fit to make. We are inclined to think that this proposition to its full extent cannot be maintained. The right of control over the navigable waters of the State is a legislative power and cannot be destroyed by any authority whatever. The right of the people to use the natural public highways of the State is jus publica and cannot be taken away or seriously impaired.’ ”
With reference to Fort Washington Park and to the Riverside Park, the Legislature has been careful to prevent the creation of easements which might interfere with the use of the waterfront for the purposes of commerce, and, in granting lands to said parks, the lands now owned by the city are expressly excepted. (See Laws of 1894, chap. 581, § 2; Laws of 1896, chap. 727, § 2.) It is very plain therefrom that the Legislature recognized that the city was merely a trustee for the benefit of the people of the lands under water lying around the city of New York between mean high-water mark and the government bulkhead fine. In Dillon on Municipal Corporations (5th ed. § 265) it is said: “ The State holds title to the lands under navigable waters within its limits * * *. But it is a title different in character from that which the State holds in lands intended for sale, * * * It is a title held in trust for the people of the State, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing in them freed from the obstructions or interference of private parties. The State cannot abdicate general control in trust for the public winch is thus vested in it in submerged lands and in navigable waters. Such abdication is not consistent with the exercise of that trust which requires the government of the State to preserve such waters for the use of the public. The trust devolves upon the State for the public, can only be discharged by the management and control of property in which the public has an interest, and cannot be relinquished by a transfer of the property in its entirety.” I am, therefore, of the opinion that the Special Term was right in holding that the city had no authority to appropriate the lands in question for park purposes.
Even if it had a right to take the lands in question, the city suffered no damage whatever by putting these lands upon its map of Inwood Hill Park and designating said lands as a part of the park. If in so doing the rights of the public are infringed upon, and they may not thereafter be used for the purposes of navigation and commerce, then, clearly, such action is prohibited and in violation of the trust under which the city holds said lands. If the taking of the park does not interfere with the use of said lands as a part of the water highway about the city, then no damage whatever has resulted to the city and no benefit has accrued to the lands *602sought to be assessed therefor. Merely calling the lands under water a part of the park will result in no benefit to any one, and the city should not be permitted to assess damages by reason thereof upon adjacent properties.
I think the decree appealed from should be affirmed, with costs against the city of New York.
Final decree modified by reinstating the awards of the city, and as so modified affirmed, with costs to the appellant. Settle order on notice.