John W. Harper, App’lt, v. William H. Williams et al., Resp’ts.
(Court of Appeals,
Filed October 2, 1888.)
Docks and wharfage—Dock built on land granted by state to promote commerce—Who may use it.
The plaintiff resides at a certain point on Long Island Sound, having a dock extending below low water mark and in front of his property, built under a grant by the commissioners of the land office of this state ,This grant gave the power and authority to erect any dock or docks that shall be necessary to promote the commerce of our said state upon the land, under water therein described, and the authority to collect from persons using said dock or docks reasonable and accustomed dockage, to be regulated by our legislature. Held, that all may use the dock who are engaged in promoting the commerce of the state; that as the use of the dock alone raises the right of compensation, it could not be made to depend upon the selection 1 y the grantee either of the time of using or of the persons who shall use the dock.
This is an appeal by plaintiff from a judgment of the general term in the second department, affirming a dismissal of the complaint at special term. The plaintiff resides at Sands Point, on Long Island sound, having a dock extending below low-water mark, and in front of his property, built under a grant made by the commissioners of the land office of this state, to one White, the plaintiff’s grantor, in these words:
The People of the State of New York by the Grace of God Free and Independent.
To all to whom these presents shall come, greeting:
Know ye: That pursuant to a resolution of the commissioners of our land office, for the purpose of promoting the *167•commerce of our said state, and for no other object or purpose whatsoever, and with the reservations and upon the conditions hereinafter mentioned, we have given, and by these presents do give, unto Charles B. White, the power and authority to erect any dock or docks that shall be necessary to promote the commerce of our said state, upon the land, under water, hereinafter described, and the authority to collect from persons using such dock or docks, reasonable and accustomed dockage, to be regulated by our legislature, to wit: All that certain piece or parcel of land, under water, situate in the town of North Hempstead, in our county of Queens, bounded and described as follows, to wit: Beginning at a point on the beach, at the line of high-water mark, distant north twenty-two and three-quarter degrees; west two chains and fifty links from the division line on the beach, between the said Charles B. White and Richard O’Gorman, and running thence south fifty-eight and one-quarter degrees, west three hundred feet; thence northerly and on a line at right angles with the last mentioned course, one hundred feet, and thence northerly fifty-eight and one-quarter degrees, east three hundred feet to high-water mark, and thence southerly and along high-water mark one hundred feet to the place of beginning. Excepting and reserving to all and every the said people the full and free right, liberty and privilege of entering upon and using all and every part of the above described premises, in as ample a manner as they might have done had this power and authority not been given, until the same shall have been actually appropriated and applied to the purpose of commerce, by erecting a dock or docks thereon.
And these presents are upon the express condition, that if said Charles B. White, his heirs or assigns, shall not, within five years from the date hereof, actually appropriate and apply the above described premises to the purposes of commerce, by erecting a dock or docks thereon, and filling in the same, then these presents and everything herein contained shall cease, determine and become void. In testimony whereof, we have caused these our letters to be made patent, and the great seal of our said state to be hereunto affixed.
Witness: Horatio Seymour, governor of our state, at our city of Albany, the seventh day of April, in the year of our Lord one thousand eight hundred and fifty-three.
(Signed) HORATIO SEYMOUR.
Afterwards a public street or highway was laid out through the upland adjacent to the lands described in the letters patent, leading down to said dock or wharf, and to high water mark on each side thereof.
By permission of the plaintiff a certain steamboat owned .by one “ W,” made regular trips from New York to the *168dock and on and from the 30th day of May, 1884, to the commencement of this action, the defendants in this case, without plaintiff’s permission, used the dock as a landing place for another steamboat named the John Sylvester, and against the prohibition of the plaintiff repeatedly landed thereon Sundays, and, as the complaint alleges threatened to do so in future. The object of the action was to obtain equitable relief by-^injunction and so restrain the defendants from committing the acts complained of. The issues joined "in the action were tried at special term, where the complaint was dismissed, and the judgment entered there was affirmed at general term, and from the judgment of affirmance, plaintiff appeals to this court.
S. P. Nash, for app’lt; Wm. H. Gibson and Wm. Clark Roe, for resp’ts.
Danforth, J.
The question raised by this appeal is to be answered according to the true construction of the letters patent above set out, and speaking from the face of the grant it would seem impossible to hold that the plaintiff or his grantor acquired any other right than to make a wharf or dock for the use of the public, subject to such rules and regulations as the legislature might see proper to impose, with authority to collect from persons using it, reasonable and accustomed dockage, as also regulated by that body. Such is its language.
The consideration of the grant is the erection of a dock, not for private use according to the views or interest of the grantee as an individual, but such dock as “ shall be necessary to promote the commerce of the state,” and upon a compensation “from persons using it,” not fixed at the whim or by the caprice or pleasure of the grantee, but by the legislature. As the object of the act is public and co-extensive with the state, it must follow that all may use the thing granted who are engaged in promoting that object, and as the use of the thing alone raises the right of compensation, it cannot be made to depend upon the selection by the grantee, either of the time of using or of the persons who shall use the dock or wharf. These things are as independent of his control as are the winds and tides upon whose favorable condition an easy access to the dock may at times depend.
The plaintiff puts his right to maintain the dock upon the letters quoted, and that right seems to us inconsistent, with an individual control, which, if now tolerated, would permit him to substitute his own pleasure for the public interest, and devote a dock which came into existence because “ necessary to promote the commerce of the state,” to such domestic business or other uses as his views of *169individual interest or profit might suggest. The incongruity of such a conclusion, with the purpose declared by the state through its commissioners, is scarcely lessened by the assertion of the plaintiff “that the dock in question did subserve the interests of commerce, though its use was limited to the needs of the immediate neighborhood.” The grant provides for the whole state, and not the traffic of a single neighborhood.
We find nothing in the cases cited by the learned counsel for the appellant which permits a different conclusion from that expressed by the judgment of which he complains, for in none of them are the facts at all like those involved in this case. An analysis of, or special comment upon them is, therefore, unnecessary Neither is it necessary to determine whether the action was, in any view, one for equitable cognizance. That question does not appear to have been raised upon the trial, and our decision upon the merits renders it unimportant.
The judgment should be affirmed, with costs.
All concur.