# Appleby v. Delaney

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United States Supreme Court
271 U.S. 403
Appleby v. Delaney
Argued: March 1, 1926. --- Decided: June 1, 1926
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 Thirty-Ninth Ninth and Forty-First streets on the east side of North or Hudson River, which have been under consideration in the case just decided. 271 U.S. 364, 46 S.C.t. 569, 70 L. Ed. 992. 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 or the city, to make a plan or plans for the improvement of the harbor, to lay out wharves, and to condemn such vested 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 is 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 Twelfth avenue, and so much of the Appleby property as lay west of Twelfth 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 31, 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 Thirty-Ninth and West Forty-First 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.
'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, 192 N. Y. S. 222.
'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 rights 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 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., of City of New York, 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 (Duryee v. Mayor, etc., of City of New York, 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 Duryee v. Mayor, 96 N. Y. 477, 485, 486:
'These ordinances adopted in 1884 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 uplands upon certain terms and conditions therein mentioned.'
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 chapter 225 of the Laws of 1845, and were attempted thereby to be placed beyond the power of the local authorities of the city of limit or amend without the previous consent of the Legislature.'
Messrs. Charles E. Hughes, of New York City, Charles Henry Butler, of Washington, D. C., and Banton Moore, of New York City, for plaintiffs in error.
Messrs. Charles J. Nehrbas and George P. Nicholson, both of New York City, for defendant in error.
Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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