#### Matter of Riverside Park Extension.

(Supreme Court, New York Special Term,

May, 1899.)

1. New York city — Valuation under Riverside Park Extension Act, Laws of 1894, chap. 158.

*The*valuation of lands taken under the Riverside Park Extension ■ Act (Laws of 1894, chap. 152), including that of lands under water, should be made as of the date of the passage of the act and not as of the time when the lands were taken, and nothing should be added for interest on the awards nor for taxes paid, after having deducted rentals received.

*2.*Same — Compensation of riparian proprietors.

Where the rights of riparian proprietors, claiming under a city grant extending into the Hudson river to the bulkhead line" of 1857 and .granting rights of wharfage and cranage, are taken by the city under a subsequent grant from the State, the proprietors are entitled to compensation for such rights and lands as were actually taken, but can .obtain no compensation for lands outside of and. beyond the • boundaries of their grant or for rights incident thereto, which resulted from the establishment by Congress in 1888 of a new and exterior bulkhead line.

Motion to confirm first separate report of commissioners.

John Whalen (Franklin Bartlett, Charles D. Olendorf, of counsel), for motion.

James A. Deering, for Standard Gas-Light Company.

Eugene A. Philbin, for John D. *&*Thomas E. Crimmins.

' Samuel E. Duffey, for Thomas Smith.

*374Nash, J.

This is a proceeding, under chapter 152 of the Laws of 1894, known as the Riverside Park Extension Act, for the appraisal. of the lands, including land under water, laid out, appropriated ánd set apart by the terms of the act for the extension of Riverside park and other public uses. The •confirmation of the report of the commissioners is opposed by all of the landowners objecting, upon the ground that the valuations put upon their lands are inadequate and not a just compensation for the lands taken.

Upon the question of compensation to the landowners it was urged by them before' the commissioners, that, the just compensation which the Constitution guarantees to the owners of the lands taken by right of eminent domain requires a valuation, as of the present time, or if valued as of the date of the passage of the act, March 24, 1894, then with interest upon such valuation from that date, and the taxes since imposed upon the lands of the city, less the rentals received,. or the value of the use and occupation of the property to the owners for the same period.

It is conceded, as upon authority it must be field, that the valuation should be as of the time of the appropriation of the lands, viz., the date of the passage of the act.

The contention of the landowners now is that there must. be added interest and taxes, less rentals received, in order to give to them the compensation to which they are entitled. Many authorities are cited in support of this contention, which bear more or less directly upon the question, but I am of the opinion that I am concluded by the decision of the General Term in this department,. in a case precisely like the one at bar. Matter of Department of Public Parks, 53 Hun, 280.

There it was held that the cases in this state, which hold that the value to be taken by the commissioners in making their awards, was that existing at the time of the report were cases in which the land was not to be taken immediately, and to be paid for as soon as its Value could be ascertained; the distinction being that when the land is to be immediately applied to the public use, condemnation following upon the location, a different tule is applied from that application to those cases in which there is no immediate intention of acquiring the title.

The act then under consideration, chapter 522, Laws of 1884, as amended in 1888, laying out parks in New York city, appropriated the lands to be taken for public use as in the act now under con*375sideration, and it was held that the lands were to be valued as of the date of the passage of the act, and that the owners were not entitled to interest upon the awards. The time which had elapsed between the date of the passage of the act and the date of confirmation was about the same there as here. The commissioners,' as appears from the case stated in their report, had considered and allowed for the delay since making the awards, and for taxes since imposed, but it was distinctly and clearly held, that, as stated in the opinion, both upon principle and authority, the owners were not entitled tor interest upon the awards, nor to an. allowance for taxes.

It is stated, in the opinion of the court, by Van Brunt, P. J., that one of the objections of the landowners was, that if the commissioners assessed the value of the land as of the date of the passage of the act, the owners of the land, although in possession of the same, and receiving the rents and profits thereof, should have been allowed interest upon the award from said date up to the payment of the amount awarded, and should also be allowed for the taxes paid during the same period. The opinion upon this question concludes:. “ The same principle is applicable to the question of taxes assessed upon the property during the time during which the owners have been in possession. They had the use and occupation of the property, and derived the profits therefrom, and, under a very familiar principle of law, were bound to keep down the annual taxes and incumbrances upon the property which were assessed thereon during the period of their enjoyment.”

It appears that the commissioners there took into consideration the delay there would be in realizing upon the awards, and made their estimates accordingly liberal, but the whole discussion of the question was as to whether interest upon valuations as of the date of the passage of the stated act was recoverable, and it was clearly and distinctly held that it was not.

The discussion of the question and the adoption of the rule as applicable to the case, were wholly unnecessary and gratuitous, if the commissioners *eo nomine,*or, in fact, had allowed interest and taxes upon valuations as of the date of the passage of the act.

It is expressly stated in the opinion, that “ the owners were not entitled to interest upon the awards nor to an allowance for taxes paid seems also to be settled upon principle and authority.”

The Messrs. Crimmins claim that they have not been allowed for sufficient land.

The original grant by the city, under which they hold their title, was made in 1865, and it conveyed to Peter B. Armory all *376that certain lot of land and land under water in front of upland, belonging to the party of the second part; describing land extending from the original line of high water of the Hudson river, between Sixty-sixth and Ninety^seventh streets westerly to “ the bulkhead line, as established by the Harbor Commissioners in the Hudson River ”, known as the bulkhead line of 1857.

The grant contained a covenant ■ that the party of the second part “ shall and lawfully may, from time to time, and at all times hereafter fully have and enjoy, take afid receive and hold to his and their own proper use, all manner of wharfage, cranage, advantages or emoluments growing or accruing by or from *that part of the exterior line of the said city lying on the westerly*side of the- hereby granted premises fronting on the Hudson river.”

To which was added: “And it is further agreed by and between .the parties to these presents, and the true intent and meaning hereof is that the present grant and every word and thing in the same contained shall not be construed or -taken to be covenants of „ warranty, or of seisin of the said parties of the first part, or their successors, or to operate further than to pass the estate, right, title ' or interest they may have or may lawfully claim in the premises hereby granted-and conveyed by virtue of their several charters and the various acts of the legislature of the state of New York.”

The legislature by an act, passed in 1837 chap. 182) provided that Thirteenth avenue, as laid out on a map, dated March 10, 1837, and approved by the mayor, aldermen and commonalty of the city-of New York, should be “ the permanent exterior street or avenue in the said city along the easterly shore. of the North or Hudson river, between-the southerly line of Hammond street and the northerly line of One Hundred and Thirty-fifth street. ■

By act of congress, as it is stated, passed the 11th ■ of August, 1888, a new- bulkheád line was established, at a distance of about 350 feet westerly from Twelfth avenue. By this legislation the city gained the right to extend the line of solid filling 250 feet westerly from the bulkhead line of 1857, toward its westerly boundary, Thirteenth avenue, as laid out by the city on the map of 1837. The city had already obtained the right from the state (Laws of 1871, chap. 574), and in 1893, its powers to establish new bulkhead lines was confirmed by the legislature. Laws of 1893, 'chap. 397.

The contention of these claimants is that the rights which accrued to the city by this legislation, also accrued to them, and they “ demand compensation for wharfage rights to a point beyond *377the (new) line of solid filling, and for the incidental rights that would attach thereto.” Their claim is put by counsel into several propositions, which taken together and in substance is that their rights are as owners of the land under water, extending to the new bulkhead line, with the right of solid filling thereto; in short,-that they are to be compensated for wharfage as if their wharf were in fact extended to the new line.

The position taken by counsel ■ can best be stated by quoting from his brief:

“ The act of congress of the 11th August, 1888, allowing the extension of the physical line of the city into the river, accrued to the benefit of these claimants, as well as to the city. Thus, it was held in Williams v. Mayor (105 N. Y. 419-429-435), that when the state granted to the city wharf rights which might extend into the deep water, covering its own land, it granted two things:Property in the land covered by the wharf and occupied by it, and an easement for the approach of vessels in front. That the grant of the. new wharf upon the new exterior line carried with it a right of access and approach over .the state’s land under water, which if the state permitted it to be filled would belong to the city. It was further held that such rights passed to the city’s grantees, but would not accrue to a mere riparian owner who had not obtained a grant. If the city, a quasi department of the state, could thus acquire title as against the state, certainly its grantee for a valuable consideration could gain such title as against it.”

The grantee of the city for a valuable consideration certainly could gain from it all the rights it acquired from the state. That is, the grantee of such rights as it had acquired. The difficulty with the ease of these claims is, that they are not the grantees of such rights. They take only such lands as were conveyed by the grant to Armory in 1865, and the rights incident thereto, the right of wharfage to the bulkhead line of 1857. Nothing additional can be predicated upon the covenant of enjoyment of the *“*wharf-age, cranage, advantages or emoluments growing or accruing by or from that part of the exterior line of the city lying on- the westerly side of the hereby granted premises, fronting on the Hudson river.” This covenant would have been implied without being expressed. The grant of the land itself would have carried with the easement of the wharfage and approach over the lands under water lying in front. Williams v. Mayor, *supra.*The city could only convey lands of which it was the owner at the time of the *378grant, any subsequently acquired lands or rights became the property of the city. Van Zandt v. Mayor, 8 Bosw. 375. The case here is precisely that which was before the court in Langdon v. Mayor (93 N. Y. 129), where the- city subsequent to its grant of land and wharfage acquired additional rights and.extended the wharf or bulkhead line into the river in front of the premisés granted, erected a bulkhead on the new line, and filled in the intervening space between it and the old bulkhead, thus destroying; its use as a wharf. It was held that while the city had the right to acquire the right to fill up.the lands granted to it by the state, it had not the right to destroy-or impair the easement it had theretofore granted without compensation therefor to the owner.

It was suggested in Williams v. Mayor, *supra,*that if the acts of legislation, the same now under consideration, have the effect of conveying to the city all lands belonging to the state, lying between the new bulkhead line and the old wharf “it must also have been their effect to convey to private proprietors all .lands belonging to the state, between the land of such proprietors and such bulkhead line.” ■ • -

That doctrine the opinion states has been expressly denied, citing Vap Zandt v. Mayor, and Finch, J., states the conclusion and the.reason for it which are equally applicable here, as follows:

“ But the alleged vicious conclusion does not follow, because the mere riparian proprietor has no right to the new outside wharf or to use or approach the same or take the wharfage therefrom, whigh is the right of the city. The private owner has no interest in the new bulk-head which can carry him over .the intervening space, and the city has. ■ The former has simply been deprived of his fights and-suffered a loss of his property for which.he is entitled to compensation.”

So, here, the claimants are mere riparian proprietors whose rights as such- have been taken and appropriated by the city under a new* grant from the state, for which and the lands actually taken they are entitled for compensation, and not for any lands outside of the boundaries of their grant- or rights incident thereto. This, I understand to be the conclusion arrived at by Mr. Justice Beach in the unreported cade of Baylies v. Mayor, where the precise -point here involved was under consideration.

My conclusion is, that .the report of the commissioners should be .confirmed. '

'Report of commissioners confirmed. *t*