dissenting:
No question is made as to the ownership of the land assessed, nor as to its being taxable in the city of Brooklyn, if taxable in any place. The city of New York owns to low-water mark on the Long Island shore, and the land is at the water’s edge, but it has been held by the Court of Appeals that whether this land was originally below low-water mark or not, it would be taxable in Brooklyn, for the reason that the low-water mark was the mark of low water upon the lands as continued into the East river by filling in or by permanent structures annexed to the main land. Luke v. City of Brooklyn (43 Barb., 54), affirmed in the Court of Appeals, but no opinion written. See, however, Atlantic Dock Company v. City of Brooklyn (1 Abb. Ct. of App. Dec., 24); Orr v. City of Brooklyn (36 N. Y., 661). This land is not exempt by statute in express terms. (2 R. S. [7th ed.], 982, § 4, chap. 293, Laws of 1881.) The assessors, therefore, are right in putting the land on the tax list unless an exemption is shown by the following facts. The property is the Brooklyn terminus of the Fulton street ferry. The ferry is very old and has always been the property of the city of New York. It had-been carried on by the city for seventy years before 1707. In 1708 the English government granted a strip of land between high and low-water mark to prevent competition, when the strip was unoccupied at the time of the grant. Since that time the city of New York has had the exclusive right to run ferries to and from the opposite lands of Long Island, Richmond county and New Jersey. These'ferries are leased out to individuals or corporations, in the present case the Union Ferrv Company. The claim is that the land in the various termina of these ferries outside of the city of New York is held for public use and on that account not taxable. That is the question presented on this appeal. Municipal governments are usually local, but modern necessities have made exceptions to the rule. *392One striking one exists both in Brooklyn and New York. Each of these cities, by public works constructed by taxation, obtain pure water from points outside the city for the use of its inhabitants. The Court of Appeals has decided that property purchased by a municipality for a reservoir outside of its limits, for a system of water-works, was not taxable in the town in which the reservoir was situated. (City of Rochester v. Town of Rush, 80 N. Y., 302.) The direct object of the water-works was for the purpose of promoting the health and safety of the people, and the legislature imposed the duty of constructing and maintaining the system upon the city of Rochester and to pay the cost out of taxes to be imposed. This was a legal public use and so determined by the' legislature, and the property was decided by the Court of Appeals to be the result of taxation and could not be taken or diminished by taxation. In the present case it does not appear how the property was acquired, wholly by grant from the English crown or by private purchase, or by filling in land adjacent to up-land which is most probable. The power of the legislature to fix a public use is sufficient to authorize the taking of lands for a ferry right. Such a power was upheld in respect to railroads. Buffalo, etc., Railroad Company v. Brainard (9 N. Y., 100) and ferries would easily fall within the same principle. There is no legislation in respect to this ferry right except that the legislature has approved of the application of the ferry requirements to the sinking fund of the city of New York. (Chap. 410, Laws of 1882.) This approval fell short of making the running of the ferry a duty imposed by law upon the city of New York. It is consistent with a private ownership of the ferry and not sufficient to create at all hazards a municipal duty to keep it running as a means of government. Unless the land be an agency or means of city government, it is taxable. (The People ex rel. Mills Water-works Co. v. Forrest, 91 N. Y., 97.) In that case the legislature had authorized private corporations to erect water-works to supply villages and had authorized condemnation of land as for a public use, and had authorized villages to contract for the water and raise money by tax to perform the contract; yet it was held not to be a governmental agency and therefore taxable. The city of New York leases its ferry right to a company which agrees to conduct and maintain a ferry, and is to -receive the fee for ferriage. *393This case differs,, it seems to me, from the City of Rochester v. The Town of Rush.
There is no legislative declaration authorizing the condemnation of lands, and there is no such legislative appropriation of the incomes as necessarily to exclude the idea that the land can be taxable. The funds are all appropriated and no requirement is made to collect the tax by another tax. This fact is prominent in the city of Rochester as well as the case of Rex v. Liverpool (7 B. & C., 61). In this case the proceeds were all appropriated by law for the improvement of the docks out of which the dock rates came. This was not a beneficial occupation. The ferry right is a privilege granted and not a duty imposed. The city takes the rent and indeed applies it to the payment of its debts, but it could have applied it on any obligation incurred for the municipal government. The legislature approved of the application, but this approval did not impliedly destroy the proprietary right of the city of New York to maintain the ferry. By this very act of 1882 the legislature prohibited any other person or corporation than the city of New York from keeping the ferry between New York and Long Island, under a heavy penalty for every offense. (Ohap. 410, Laws of 1882, § 1966.)
The ease is not similar to the suspension bridge over the East river. That is built by taxation; land is condemned for it as for a public use and it is put under the control of the cities of New York and Brooklyn, and its revenues all appropriated directly by the legislature, thus excluding all possible inference that it is taxable in either city, and still further it is declared a public highway subject to toll. The land in the present ease is of large value without regard to the structm’es on it for ferry purposes. The city of New York has other ferry rights along the water front of Long Island, and presumably other landing places, which would all be exempt. Under the rule of exemption claimed by respondent, lands could not be purchased and made free of taxation if used in connection with the ferry rights of the city of New York. The same question will arise in Richmond v. Queens County. The subject is so important* that I deem it safest to follow the statute until the Court of Appeals can pass upon the question.
The order should be reversed, with costs and proceedings affirmed.
Judgment affirmed, without costs.