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October 6, 1943


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This is an application by the record owners of damage parcels 2, 4 and 4A for an order directing the payment to them of the respective sums allocated to their properties which have been deposited by the government in the taking of the entire tract embraced within the title of this proceeding. The applicable statute is 40 U.S.C.A. § 258a.

The motion is contested by the People of the State of New York, and by the City of New York, as claimants, each being named as a defendant in the amended petition.

 Under a stipulation the cause has proceeded to hearing, and evidence has been taken so that in effect there is to be an adjudication of the conflicting claims of title as though an action at law had been instituted to that end. This has been deemed to be a convenient method of disposing of the controversy, and since in form it is a motion the court has felt free to receive all evidence tendered by the parties, although if this were an action in ejectment, for instance, greater deference to the common law rules of evidence would have been requisite.

 In making a decision, the effort has been made to examine the contentions of the parties with the same strictness that would govern the disposition of a controversy over title, for that is the essential nature of the proceeding; and yet it is difficult to stifle a realization that both the State and the City are merely reaching out for money which presumably takes the place of property, as to which neither has asserted any right whatever during the past ninety years. But for the accident of this condemnation, there is no reason to suppose that either of the adverse claimants would have initiated litigation to test the respective titles of the Brooklyn Union Gas Company as to damage parcel 2, or the Delaware, Lackawanna & Western Railroad Company as to damage parcels 4 and 4A. Since the former is a public utility and the latter a carrier, there can be no doubt that both the City and the State have collected divers taxes, franchise and otherwise, for many years from both, upon practical notice that the earnings upon which they were levied were based in part upon the operation of these companies upon the properties in question, so that inquiry into the subject-matter of this controversy would have been entirely natural if any actual misgiving were entertained as to the legal title of either to the real estate in question.

 These are adjoining damage parcels and lie on the easterly side of Wallabout Bay (which is part of the East River) northerly of the Navy Yard; the extension of the latter to embrace the 25.4 acres referred to in the title gave rise to this condemnation proceeding.

 These parcels are at the northerly end of the property being taken, and in part involve the same chain of title, which is the reason for treating them in one opinion. Prior to 1850 they were part of the land under water which lay offshore of the former Boerum and Remsen farms, which constituted the upland, title to which is not in dispute.

 The land under water was bulkheaded, filled, developed, occupied and used in all respects as though it constituted a part of the upland; legal title thereto is the subject-matter of this controversy.

 Damage Parcel No. 2.

 The record title of the Brooklyn Union Gas Company dates back to 1895, when it acquired the property from Nassau Gas Light Company, which latter had been the record owner of part of the property since 1870, and of the balance since 1891.

 This damage parcel is constituted of three former parts, known as the Shipman, Waterbury, and Cross properties; the first was the northerly section, and the third the southerly, separated by a triangular piece, having its apex to the west, known as the Waterbury piece.

 Shipman, Waterbury and Cross, as owners, were the sources of title which was conveyed by the Nassau Gas Light Company to the Brooklyn Union Gas Company; as to Shipman and Cross, there were conveyances made to them by both the State and the City. As to Waterbury, the claim of title is based upon adverse possession against the City, commencing in 1855.

 Since the land lay between high and low water, the State asserts that the federal government has taken its property, not that of the apparent owner in possession, for reasons later to be discussed. The City asserts that it is entitled to so much of the deposit as may be allocated to the former Waterbury parcel, since the asserted adverse possession never ripened into legal title; also it argues that, as against the State, it was and is the owner of the land between high and low water which it has not expressly conveyed to Cross and Shipman. The contentions thus broadly stated involve elements which require statement and discussion, as will appear.

 The issue between the State on the one side, and the City and the record owners on the other, touching the title to the strip of land between high and low water lines is based upon the contention of the former that the Cornbury and Montgomerie Charters of 1708 and 1730, respectively, did not convey title to the Mayor, Aldermen and Commonalty of the City of New York to "all that aforesaid vacant and unappropriated ground lying and being on the said Nassau Island (alias Long Island) from high water mark to low water mark aforesaid, contiguous and fronting the said City of New York from the aforesaid place called the Wallabout to Red Hook aforesaid * * *".

 The argument for the State runs that the purpose of the petitioners for the earlier charter was to insure to the City of New York the control of the ferry called Old Ferry to Nassau Island, and "that the bounds and limits of the existing ferry be somewhat extended * * * for the better improvement and accommodation of the said ferry" as the petition states.

 That document in terms, however, prays for a grant of "all that vacant and unappropriated land, from high water mark to low water mark" etc., as above, for the reason stated.

 The conveyance in the charter was in fee simple, and the habendum was appropriate to that end: "To have and to hold, all and singular the said ferry, vacant land, and premises, hereinbefore granted and confirmed * * * unto the said Mayor, Aldermen, and Commonalty of the City of New York and their successors and assigns forever; to be holden of us, our heirs and successors in free and common socage, as of our Manor of East Greenwich in the County of Kent, within our Kingdom of England; yielding, rendering and paying unto us, our heirs and successors for the same, yearly, at our Custom House of New York, to our collector and receiver-general there for the time being, at or upon the feast of the nativity of St. John the Baptist, the yearly rent or sum of five shillings, current money of New York".

 The Montgomerie Charter of 1730 regrants and reconfirms prior charters and grants, including the Cornbury Charter.

 It is true that the latter grants the ferry, i.e., a franchise to operate and run an important enterprise, but unless this court is prepared to hold that the conveyance of real estate, i.e., the strip of land between high and low water, was of a mere appurtenant to the franchise (which would constitute a legal solecism of no mean dimensions), the Cornbury Charter should be deemed to have accomplished that which its terms proclaimed, namely, the vesting in the then Mayor, Aldermen, and Commonalty of the City of New York of an indefeasible title to the land lying between high and low water marks on Long Island, between Wallabout and Red Hook.

 The negative argument for the State is not supported by any decision, statute, or treatise, so far as the briefs disclose.

 It would seem that so important a contention would have been presented in litigation between the State and the City at some convenient time since the adoption of the State Constitution in 1777 (a matter of 166 years), had there been good reason for seeking to establish in authoritative manner that the Cornbury and Montgomerie Charters were inadequate to accomplish their proclaimed objects.

 For the City, attention is directed to Chapter 584 of the Laws of 1732, whereby the Governor, Council and General Assembly of the then Colony of New York enacted a statute recognizing and confirming the City Government of the Mayor, Aldermen and Commonalty (of the City of New York) as a corporate and politic body, and confirming all prior letters-patent, grants, charters and gifts under the great seal of the Colony made to the corporation, and the right to enjoy all prior gifts, charters, grants, powers, liberties and hereditaments theretofore granted thereunder.

 Also, that in the State Constitutions of 1777, 1822, and 1846, it was provided that nothing in them should affect any grants of land in the State made by the Crown, or annul any charters made before October 14, 1775.

 That the City has exercised its rights in the premises appears from the Map, City Ex. 5, showing leases and grants in fee of various properties within the affected area, between 1764 and 1865.

 The opinion in New York Dock Co. v. Flinn-O'Rourke Co., 121 Misc. 155, at page 160, 200 N.Y.S. 347, at page 351, contains the following: "By the Cornbury Charter of 1708 there was granted to the Mayor, Aldermen and Commonalty of the City of New York, the fee of the land between high and low-water marks on the Long Island shore from Wallabout to Red Hook, and the Montgomerie Charter aforesaid contained a similar provision." See, also, Hoffman "Estate and Rights of the Corporation of the City of New York", Vol. 1, pp. 163, 164; and Gerard "Streets, Wharves and Land under Water", p. 60.

 Recognition in express terms by the State of the City's title to the land in question is expressed in the following: Laws of 1836, Chapter 484; Laws of 1847, Chapter 271; Laws of 1851, Chapter 83.

 In all of the foregoing, authority was given to individuals to erect docks, bulkheads, piers, etc., and the Act of 1836 established the permanent water-line of the then City of Brooklyn. The following reservation appears in each: "Nothing in this act contained shall be taken or construed to destory, abridge, or in any manner impair the rights of the mayor, aldermen and commonalty of the city of New-York in respect to the land between the lines of high and low water along the Brooklyn shore of the east river; nor shall this act authorize any dock or wharf to be erected upon any of the lands belonging to the city of New-York, without the permission of the common council of said city first had and obtained."

 The same reservation appears in the State's grant to Shipman (State Ex. 23) later to be noticed.

 In view of this impressive showing of concurrence on the part of the Colony and later the State of New York in that which was by accurate and precise terms embodied in the Cornbury Charter, it ought to be apparent why this court can perceive no reason to undo what was accomplished a matter of 233 years before the institution of this proceeding.

 It results therefore that this decision will proceed upon the theory that the City of New York was vested with title to so much of the land between high and low water marks as was adjacent to the upland constituting the Remsen and Boerum farms at all times material to this cause, and immediately prior to the incidents constituting the transition of title to the owners of an earlier day from whom the Gas Company and the Railroad Company assert title by succession.

 It next becomes necessary to decide with reasonable certainty, where the high and low water marks were, as of the respective dates of the transmission of title, constituting the bases of the claims of the record owners. That is a highly controverted issue, because some of the properties will be found to have extended beyond any low water mark which can be established, which means that title to so much of the affected area was originally vested in the State of New York; the inquiry is then directed to grants or patents from the State to certain individuals in the chain of title and the legal effect to be given thereto.

 If the grants were adequate instrumentalities to accomplish a transfer of title to those remote grantors of the record owners, the State is entitled to receive no part of the funds in court; if, on the contrary, the grants must now be deemed to have brought about less than the transfer of title, a different result might ensue.

 The City and the record owners assert that the high and low water lines shown on the Ludlam Survey of 1829-32 must be accepted for present purposes, while the State contends that a Map prepared by Loss in 1810 in connection with a cession of jurisdiction by the State to the United States of certain land under water, for the Navy Yard, shows the true margins which were further inshore, and should be deemed to embody the authentic dimensions of the respective limits of the City-owned strip.

 It would be a simple matter to say that both may have been accurate when made, and that the latter must be accepted since it is the more recent of the two; but the State attributes a studied recognition of the Loss high and low water lines both to the City and to Caleb Shipman, the predecessor in title to a part of this damage parcel of the Gas Company as late as 1865, and argues that something in the nature of estoppel was thereby created which now operates to prevent either from now asserting that the Ludlam lines were correct in 1829-32.

 It will be necessary to examine this question with some care:

 The deed from the City to Shipman is City Exhibit 11, and Shipman's petition to the Land Board of the State is State Exhibit 19, and the grant which was issued pursuant thereto is State Exhibit 23. Authority to make the grant is contained in Chapter 281 of the Laws of 1864, which was passed by a two-thirds vote.

 Annexed to Shipman's petition is a survey by L. L. Bartlett, City Surveyor, made in March, 1865, of the property for which he sought the grant, and shown thereon are "high water was per Loss Map 1810" and "low water as per Loss Map 1810".

 It can be demonstrated from the evidence that there was no reason in 1864 either to impart vitality to the Loss water lines of 1810 or to show that they were inaccurate: Shipman's petition to the Land Board was made in order to obtain the State's sanction to his having filled in his land to the bulkhead line established by the Act of 1857, and so recites. This he had done under apparent legislative authority (Act of April 4, 1849) which was not passed by a two-thirds vote in the Senate; that is, but 21 out of 32 senators voted in favor. It may be assumed for present purposes that the law failed to sufficient votes in the Senate to render its passage constitutional.The Commissioners of the Land Office were of the view that the 100 feet should be measured outshore from the low water line perhaps shown but not so entitled by Loss in 1810. Since a bulkhead line had been established in 1857, and Shipman had filled in his land to that line, he sought and obtained the sanction from the State for so doing, as is shown by the grant, State Exhibit 23, dated June 28, 1865, of land which is clearly described as being bounded on the west by the bulkhead line of 1857, and on the east by "the lands of said Caleb Shipman on the said shore".

 In other words, one reason for the reference in the petition, State Exhibit 19, to the Loss lines in the Bartlett Survey may well have been to delineate the theory of the Commissioners of the Land Office, for the information of the Legislature, in order that the reason might clearly appear why special relief was sought as prayed in the petition.

 No reason is apparent for the inclusion of the Loss lines in the Bartlett Survey, connected with the description of the property being granted by the State to Shipman; neither line established any boundary, nor was any measurement based upon any high or low water mark. The Survey would have been complete and informative without them, except for the reason above suggested.

 The Bartlett Survey was also incorporated by reference, in the Shipman deed from the City, City Exhibit 11, dated July 6, 1865, but again the description of the land thereby conveyed, by metes and bounds, did not include reference to the location of the Loss or any other high and low water lines. The State of course gains nothing in support of its own case from the contents of the deed from the City to Shipman. The suggestion in the brief, that something in the nature of an estoppel can be spelled out of these uses of the Bartlett Survey, has no support in either reason or authority, for the State is not shown to have acted or refrained from acting in reliance upon Bartlett's inclusion of the Loss high and low water lines in his Survey of March, 1865. The argument for the State loses persuasive quality by reason of assertions which cannot be verified by reference to the documentary evidence:

 (a) That the Loss high and low water lines are used as boundaries by the City in its deed to Shipman (main brief p. 75). This is just not so.

 The conveyance is by metes and bounds as per map attached (Bartlett, March 1865), and while the designation is of a piece of land "between the line of original high water mark and the line of original low water mark", there is no reference to the Loss lines in the description; there is no statement that the "original" lines coincided with the Loss lines. That assertion is argumentative, not factual.

 (b) That Shipman dealt with the State "using the Loss lines as controlling" (Supp. brief p. 3). Nothing in Shipman's petition bears out that assertion.

 (c) That the 1849 "bulkhead line constitutes the easterly boundary of the State's grant to ...

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