1. Acting under general authority contained in a New York
statute of 1871, the Dock Commissioner of New York, with the
approval of the Sinking Fund Trustees of the city, adopted a plan
of harbor improvement inconsistent with the right of the
plaintiffs, under contracts made with the city before the date of
the statute, to fill in their water lots out to a bulkhead line,
and their application to the Commissioner for permission to do such
filling was therefore denied by him.
Held, that the
refusal was equivalent of a law of the state impairing the
obligation of the contracts within the meaning of Article I, § 10,
of the Constitution, and that this Court had jurisdiction, under
Jud.Code, § 237, to review by writ of error a judgment of the state
court sustaining the refusal over the constitutional objection. P.
271 U. S.
409.
2. Where the grantees of water lots conveyed to them by the City
of New York in fee simple, "to be made and gained out of the
Page 271 U. S. 404
Hudson River," together with wharfage rights, covenanted to
build wharves, bulkheads, and certain avenues and streets within
the outboundaries of the premises conveyed, upon request of the
city, but not to build them without its permission, and the
ordinance under which the deeds were made provided that
"No grant made by virtue of this ordinance shall authorize the
grantee to construct bulkheads or piers or make land in conformity
therewith without permission to do so is first had and obtained
from the common council,"
Held:
(1) That the requirement of the city's consent before filling
should be construed as relating to the streets, and not to the lot
between them, since otherwise the enjoyment of the lots, for which
the grantees gave valuable considerations and on which for many
years they had paid the city taxes in reliance on this
construction, as supported by utterances of the state courts and
declared to have become a rule of property, would be dependent upon
the mere pleasure of the city. P.
271 U. S.
409.
(2) That, if the provision applied at all to the lots, it should
be regarded as a mere police regulation, requiring a permit for the
purpose of supervising the filling in protection of the public
order. P.
271 U. S.
413
235 N.Y. 364, 199 App.Div. 552, reversed.
This is a writ of error to a judgment of the Supreme Court of
New York in a suit for mandamus entered by direction of the Court
of Appeals of New York in a case involving the same deeds of water
lots between 39th and 41st Streets, on the east side of North or
Hudson River, which have been under consideration in the case just
decided. The petition of the Applebys as relators in this case
shows that they have performed all the covenants they had to
perform under the deeds; that neither they nor their predecessors
in title had ever been required to build or erect piers, wharves or
bulkheads, referred to in the deeds; that, under the Act of 1871, a
Department of Docks was created, with general supervision and
control of the dock property of the city; that it was given
authority, with the approval of the Sinking Fund trustees of the
city, to make a plan or plans for the improvement of the harbor, to
lay out wharves, and to condemn such vested
Page 271 U. S. 405
property interests of individuals as might interfere with such
plans and make compensation therefor; that, in June, 1891, the city
instituted a condemnation proceeding to acquire the Appleby
property, but that, in 1914, it discontinued it, and since that has
never attempted to acquire title to the premises; that a plan was
adopted, in 1916, by the Dock Commission for harbor improvement,
with the approval of the Sinking Fund trustees, for a marginal
wharf to be 250 feet wide, to include all of 12th Avenue, and so
much of the Appleby property as lay west of 12th Avenue, and within
a distance of 100 feet westerly therefrom, which would interfere
with relators filling their lots; that in December, 1919, the
Applebys made application to the Commissioner of Docks to begin and
continue the filling of the two lots of the Applebys within the
government bulkhead line as permitted by their deeds; that the
Commissioner of Docks, in answer to this application, wrote as
follows:
"January 31st, 1920"
"Replying to your letter of the 26th instant, I beg to advise
you that the application of Edgar S. Appleby and John S. Appleby
for permission to construct either a platform between West 39th and
West 41st Streets, North River, or a concrete wall on platform
construction with sheet piling along the inner side to retain
filling is hereby formally denied on account of the fact that the
proposed construction is not in accordance with the new plan."
Thereupon this suit was brought by the Applebys against the Dock
Commissioner to compel the issuing of the necessary permit. This
was denied by the Supreme Court in special term. The denial was
reversed in the Supreme Court, Appellate Division, and that
reversal was in turn reversed by the Court of Appeals in an opinion
as follows:
"Relators seek to compel the commissioner of docks to approve
permits for the filling in of lands under water. "
Page 271 U. S. 406
"The facts herein are substantially the same as in
Appleby
v. City of New York, decided herewith, with this difference:
the city established a new bulkhead line in 1916, which crosses the
premises granted between Twelfth and Thirteenth Avenues. It was
held in the action that the rights of the relators are not limited
by this bulkhead line, but only by the bulkhead line established by
the Secretary of War. The court below decided herein that a writ of
peremptory mandamus should issue unless condemnation proceedings
were instituted to acquire relators' property and property rights
within such line. (199 App.Div. 552.)"
"We held in the action that the title of relators to lands
actually under water is subject to the rights of the city to
improve the same for the purposes of navigation. but that the city
must reacquire the property right in the land under water which it
has conveyed before it can carry out its plans for such
improvement."
"This application should not, however, be granted. Section 15 of
title 4 of the sinking fund ordinance of 1844, referred to in the
opinion in the action, provides:"
" No grant made by virtue of this ordinance shall authorize the
grantee to construct bulkheads or piers or make land in conformity
therewith without permission to do so is first had and obtained
from the common council."
"The water grants under which relators hold title also
provide:"
" And it is hereby further covenanted and agreed, by and between
the parties to these presents, and the true intent and meaning
hereof is that the said party of the second part, his heirs and
assigns will not build the said wharves, bulkheads, avenues or
streets hereinbefore mentioned or any part thereof, or make the
lands in conformity with the covenants hereinafter mentioned until
permission for that purpose shall be first had and obtained
Page 271 U. S. 407
from the said parties of the first part or their successors, and
will not build or erect or cause to be built or erected any wharf
or pier or other obstruction in the Hudson River in front of the
hereby granted premises without the permission of the said parties
of the first part or their successors or assigns first had for that
purpose."
"In
Duryea v. Mayor, etc. (62 N.Y. 592), it was said
that a similar clause did not limit the right of the owners to fill
the space between the streets, but on a subsequent appeal
(
Duryea v. Mayor, etc., 96 N.Y. 477), it was said that the
provisions of the sinking fund ordinance had not been called to the
court's attention on the first appeal, and it was held that the
council had given its consent. We are free to interpret the clause
according to its meaning. To construe the ordinance and the grants
as permitting the filling of the land between the streets at the
will of the grantee and as prohibiting the building of the wharves
and streets without the consent of the common council would be
unreasonable. The lands are thus held subject to the conditions of
the grant, and may not be filled in without the approval of the
city authorities. The power to grant permission to construct
bulkheads or piers and to make land in conformity with relators'
grants implies the right to withhold such permission."
The Sinking Fund ordinance, referred to in the opinion of the
Court of Appeals, does not appear in the record. The Court of
Appeals, however, took judicial notice of it, and the following
statement with respect to it is taken from the opinion of that
court in the case of
Duryea v. The Mayor, 96 N.Y. 477,
485-486:
"These ordinances adopted in 1844 provide, among other things,
that the lands under water on the shores of the island of New York,
belonging to that city under its several charters, might be sold
and conveyed by such city to parties desiring to purchase the same,
giving priority to the owner of the adjacent upland upon certain
terms and conditions therein mentioned. "
Page 271 U. S. 408
"Section 15 reads:"
" No grant made by virtue of this ordinance shall authorize the
grantee to construct bulkheads or piers or make land in conformity
thereto without permission so to do is first had and obtained from
the common council, and the grantee shall be bound to make such
lands, piers and bulkheads at such times and in such manner as the
common council shall direct under penalty of forfeiture of such
grant for noncompliance with such terms of the common council."
"These ordinances were recognized and approved by the state
legislature in ch. 225 of the Laws of 1845, and were attempted
thereby to be placed beyond the power of the local authorities of
the city to limit or amend without the previous consent of the
legislature. "
Page 271 U. S. 409
MR. CHIEF JUSTICE TAFT, after stating the case as above,
delivered the opinion of the Court.
The relators base their writ upon the alleged impairment of
their contract rights contained in the grant and covenants of their
deeds by the plan adopted in 1916 under the Act of 1871 by the Dock
Department, and approved by the Sinking Fund trustees, the
execution of which the dock commissioner is enforcing by a formal
refusal to grant permission as requested by the relators to fill up
their lots. The authority of the Dock Commissioner and the Sinking
Fund trustees under the Act of 1871 is such as to make the plan and
the refusal equivalent to a statute of the state, and, assuming
that it is in conflict with the grant and covenants of relators'
deeds, it is a law of the state impairing a contract obligation,
under § 10, Article I, of the federal Constitution.
New Orleans
Waterworks Co. v. Louisiana Sugar Refining Co., 125 U. S.
18;
Williams v. Bruffy, 96 U. S.
176,
96 U. S. 183;
Walla Walla City v. Walla Walla Water Works Co.,
172 U. S. 1;
Mercantile Trust & Deposit Co. v. Columbus,
203 U. S. 311;
Zucht v. King., 260 U. S. 174. We
have jurisdiction of the writ of error under § 237 of the Judicial
Code.
The question in this case, then, is whether the deeds before us,
construed in connection with the Sinking Fund ordinance of 1844,
gave to the plaintiffs the right to fill in the lots without the
consent of the city. Each deed described the land conveyed as
follows:
"All that certain water lot or vacant ground and soil under
water to be made land and gained out of the Hudson or North River
or harbor of New York, and bounded, etc., together with all
Page 271 U. S. 410
and singular the privileges, advantages, hereditaments. and
appurtenances to the same belonging or in any wise
appertaining."
The grants were in fee simple. The grantees respectively
covenanted that they would, upon the request of the city, build
bulkheads, wharves, streets, and avenues to form part of Twelfth
and Thirteenth Avenues, and Thirty-Ninth, Fortieth, an Forty-First
Streets, which were within the general description of the premises
conveyed. These were excepted therefrom for public streets. The
grantees agreed to pay the taxes on the lots lying between the
streets. There was a covenant that they would not build the
wharves, bulkheads, avenues, or streets previously mentioned until
permission had been given by the city. The city covenanted that the
grantees might have wharfage on the westerly side of the granted
premises fronting on the Hudson River, excepting at the westerly
ends of the cross streets, which was reserved for the city.
In a deed of a similar water lot on the east side of the city,
with exactly the same covenants, the question arose in the case of
Duryea v. Mayor, etc., 62 N.Y. 592, 596, whether the
covenants with respect to filling the streets applied to the
filling of the water lots between the streets, and it was held that
they did not. The court said at page 596:
"The only covenant in the deed for making lands applies
exclusively to the building of streets, wharves, etc., and there is
not a word pertaining to the intermediate spaces."
In the same case, reported in 96 N.Y. 477, the Sinking Fund
ordinance, not referred to in the first decision, was pressed upon
the court to change its conclusion in the first hearing and to hold
that the city had the absolute right, by reason of the ordinance,
to forbid the filling of the land conveyed. As to that the court
said:
"It may very well be doubted whether the construction formerly
given by this court to the covenants contained in
Page 271 U. S. 411
the deed should not also be deemed applicable to the provision
of the Sinking Fund ordinance. The object of this provision was not
to cause any interest in the land conveyed to be retained by the
grantor, or to postpone the period of enjoyment of its owners, or
increase the security of the public creditors, but was obviously
designed to enable the grantor to shield itself from the burden of
caring for and maintaining the piers, wharves, and streets until
such time as it should deem the assumption thereof profitable and
expedient, and to fix the time and manner of erecting those
structures with reference to the introduction therein of water,
gas, sewer pipes, and other necessary conveniences which naturally
fell under the supervision and control of the city authorities. The
accomplishment of this object would in no way be materially
interfered with by allowing the grantees to proceed with their
contemplated work of redeeming their lands from the water and
realizing the benefits, which were the sole inducement to them for
its purchase."
It referred to the conduct of the city through all its
departments for a period of upwards of 20 years in dealing with the
ordinance and deeds like this as having affixed the interpretation
claimed by the relators as the true intent and meaning of both. It
said further:
"The rule by which this ordinance is to be construed is such as
applies to the interpretation of the acts of other legislative
bodies, and is that which shall best effectuate the intent of its
authors. The reason and object of an act are to be regarded to
arrive at its meaning, and while it is not competent to interpret
that which has no need of interpretation, or to deny to clear and
precise terms the sense which they naturally present, yet, when
such terms lead to manifest injustice and involve an absurdity, law
and equity both require us to give such an effect to the language
used as will accomplish the obvious intent of the legislature.
"
Page 271 U. S. 412
"The only lands expressly provided to be made by the ordinance
are those constituting the piers, wharves, streets, and avenues,
and since it is unnecessary, in order to give the clause in
question an office to perform, to extend it to lands outside of
such streets and to create a right unconnected with those clearly
intended to be granted, it is in accordance with settled rules of
interpretation to limit the effect of general language to the
accomplishment of the object undoubtedly intended. . . . If it be
held that the words 'make land in conformity thereto,' as used in
the ordinance, apply only to the lands necessary to form the piers,
bulkheads, and streets, the defendant will not only be protected in
all of the rights intended to be secured to it, but the grantee
will receive the benefits of his purchase and the deed will be free
from objection on account of the apparent repugnancy existing
between the interest actually conveyed and those apparently
reserved."
"It is quite inconceivable that parties should purchase land
burdened with the condition that it should be enjoyed only the the
permission of the grantor, and a construction having that effect
should only be adopted when no other is possible or
sustainable."
After giving this construction to the deed and ordinance, the
court then examined the evidence, and found that the common council
had by its conduct consented to the filling in of the lots, and
because, in its summing up, the court referred to the latter
ground, it is insisted that its chief discussion and conclusion
upon the construction of the ordinance and deed are not to be
treated as authority. It should be noted that the construction of
the deed by the court in the
Duryea case upon this point
was referred to approvingly as authority in
Mayor v.Law,
125 N.Y. 380, 391, where, citing the
Duryea case, the
court used this language with respect to a similar covenant:
"The grantee became the absolute owner of the land between the
streets, the land granted, and [that] he
Page 271 U. S. 413
could properly fill up whenever he choose, suiting his own
pleasure as to the time and manner of doing it, but there was
nothing in the grant binding him to fill it up."
The Court of Appeals in the present case disposed of the
question we are discussing as follows:
"To construe the ordinance and the grants as permitting the
filling of the land between the streets at the will of the grantee
and prohibiting the building of the wharves and streets without the
consent of the common council would be unreasonable."
We cannot agree with this. We think the reasons advanced by that
court in the second
Duryea case to sustain the opposite
construction of the deed and ordinance are much more persuasive. It
has added force when it appears from the opinion in the
Duryea case and the conclusion of the Appellate Division
in this case that such construction of such deeds and the ordinance
has become a rule of property for more than 50 years. It is not
reasonable to suppose that the grantees would pay $12,000 in 1852
and 1853, and leave to the city authorities the absolute right
completely to nullify the chief consideration for seeking this
property in making dry land, or that the parties then took that
view of the transaction. In addition to the downpayment, the
grantees or their successors have paid the taxes assessed by the
city for 75 years, which have evidently amounted to much more than
$70,000. It does not seem fair to us, after these taxes have been
paid for 60 years in the confidence justified by the decision of
the highest state court that there was the full right to fill in at
the pleasure of the grantees and without the consent of the city,
now to hold that all this expenditure may go for naught at the
pleasure of the city.
If the Sinking Fund ordinance is to be applied at all to the
filling in of the land in the limits within the deeds, it should in
our judgment be regarded as a mere police
Page 271 U. S. 414
requirement of a permit incident to the filling and to
supervising its execution by regulation as to time and method, so
that it should not disturb the public order. Had the refusal of the
Commissioner of Docks, charged with the police regulation as to the
docks, taken this form, an application for mandamus might well have
been denied because only an effort to control the police discretion
of the public authorities; but the refusal to permit the filling to
begin is not put on any such ground. It is denied because the city
has a different plan which does not permit the filling at all. This
is an assertion of the right of the city absolutely to prevent the
filling which is an impairment of the obligation of the contract,
made by the city with these plaintiffs, in violation of the
Constitution of the United States.
The judgment of the Supreme Court is reversed, and the case
remanded for further proceedings not inconsistent with this
opinion.
