City of Brooklyn v. Mackay

Goodrich, P. J.:

This is a proceeding by the petitioner for the condemnation of land, riparian rights and land under water for the purpose of the Shore drive.

The land in question belongs, to the defendant, Catharine I. Mackay, who, being owner of the upland, obtained a grant from the Land Commissioners, in 1895, of that portion of the land in question which was below high-water mark.

One Wardell was the owner of an adjacent plot of upland on the north side of the Mackay plot, but he never obtained a grant from the Land Commissioners.

Previously to 1872 the grantors of Wardell had erected a dock which ran out into the water at about a right angle to the general course of the shore line and beyond high-water mark. When the land grant to Mackay was made, the northerly line of his grant was run, not in the line of the dock, but at what was- intended by the Land Commissioners to be a more equitable adjustment of the dividing line between the adjacent owners and parallel to the extension of Bay Ridge avenue, but' this line ran diagonally through the dock,, leaving to the south of such line and upon the land granted to Mrs. Mackay, a long triangular gore extending out about.285 feet from the original shore line, the base of the triangle at the water end being about 25 feet in width.

Wardell was in possession of and using the dock for a long period prior to the time of the land grant, and also at the time of the condemnation proceedings, but on December 31, 1895, executed a deed to the county of Kings of all his upland and land under water and water rights in front of his premises, together with “ all the docks, piers and bulkheads owned or occupied by the party of the first part, and all water rights appurtenant thereto.”

It is claimed by Mrs. Mackay that inasmuch as she obtained a land grant for the land under water upon which the triangular gore of wharf was built she obtained a title to the dock structure. In other words, that the action of the Land Commissioners in making a. land grant to her, although the' State made no claim to the dock which had been built and was occupied by and in possession of Wardell, resulted in a transfer to her of. the title to the dock.

The Court of Appeals, in the case of Wetmore v. The Brooklyn Gas Light Co. (42 N. Y. 384), held that the public has no right to use' wharves erected by the owners of lands adjacent to the navigable waters of the East river within the permanent water line of the city of Brooklyn although such wharves extend, beyond low-water mark, and were erected without the authority of the State. If the State sees fit to permit such structures to remain, no private individual has any right of entry upon them without the consent of the owners;

It will be observed that the dock as originally erected is within the exterior bulkhead line as laid down under chapter 763 of the Laws of 1857 on the map, which is one of the exhibits in the case, and it is nowhere contended that it ever constituted any obstruction to the free navigation of the bay; and while it was built on land belonging to the State, and so remained until the grant to Mrs. Mackay, and while the State could have compelled its removal, so-long as it remained, no other person than the builder could obtain any right therein or title thereto.

The structure, if built out below high-water mark and into the navigable waters of the bay, was unquestionably a purpresture and a nuisance. The State could undoubtedly have compelled its removal, but, so long as it remained, the occupant was' entitled te its possession, and could collect wharfage. (The Idlewild, 59 Fed. Rep. 628; affd., 64 id. 603.) But until the State exercised fhis power the dock remained the property of Warded.

Mrs. Mackey never gave any value for the dock, and the utmost that can be said is that the judgment works damnum absque inj uria.

The judgment and order should he affirmed, with costs.

All concurred.