#### BEDLOW v. STILLWELL et al.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Dower—Right to—Wharves.

Under 1 Rev. St. p. 740, which provides (section 1) that “a widow shall be endowed of the third part of all the land whereof her husband was seized of an estate of inheritance at any time during the marriage” and (section 10) that “the terms real estate and lands as used in this chapter shall be construed as co-extensive in meaning with lands, tenements, and hereditaments,” a widow is entitled to dower in a wharf owned by her husband as appurtenant to his ownership of the fee in an adjacent street.

Appeal from special term, New York county.

Action by Fannie M. Bedlow against Sarah A. Stillwell and others to recover dower in certain lands. From an interlocutory judgment entered on a decision of the special term, and from a final judgment entered on the report of a referee, awarding plaintiff dower, defendant Sarah A. Stillwell and Charles C. Keeler appeal.

Affirmed.

The opinion of Mr. Justice INGRAHAM at special term is as follows:

This action is brought by plaintiff to recover dower in an interest in a certain dock in the city of .New York, of which it is claimed her husband died seised. It appears in the year 1806 Henry Rutgers was the owner of certain premises abutting on the East river, at the foot of Montgomery street, in the city of New York; and on the 28th of November in that year the mayor, etc., of the city of New York granted to said Rutgers a piece of land between high and low water mark, abutting upon the property owned by him, which piece of land was particularly described upon the plan or map which was specifically referred to in said grant. By a separate provision in the grant the said Rutgers agreed to build on the south side of the premises conveyed a good, sufficient, and firm wharf, pier, or street, of seventy-feet in breadth continuous to the East river, or harbor of said city, also distinguished on said map as “Front Street.” Rutgers complied with his covenant, and built the street, which thereby became a public street. He-lea sed said premises, and subsequently the lessees, with the consent of the-municipal corporation, erected a pier extending from the south side of said, street into the East river. The upland upon the west of Front street was-subsequently sold by plaintiff’s husband and his cotenants, in which conveyances plaintiff joined; leaving the only premises owned by the plaintiff’s husband, in which plaintiff could claim that she had a right of dower • —the right to, the use of—on the east side of Front street, and this wliarf so erected by the tenants under the lease made to them by Rutgers. AlfredBedlow, plaintiff’s husband, was the owner of one undivided sixth interest in this wharf right, as devisee or heir at law of the said Rutgers, and the-question is whether or not this was an interest to which the plaintiff’s right of dower attached.

By the Revised Statutes (1 Rev. St. p. 740, § 1) it is provided that “a widow shall be endowed of the third part of all the land whereof her husband was seized of an estate of inheritance at any time during the marriage.” “And the terms real estate and lands as used in this chapter shall be construed as co-extensive in meaning with lands, tenements and hereditaments.” Id. p. 750, § 10. The terms “lands, tenements, and hereditaments” are generally construed to include all lands and interest in lands, corporeal' or incorporeal, which would descend to an heir at law; and it would seem to follow that if this interest of plaintiff’s husband was an interest in land-of which he was seised, and which would descend to his heir at law, plaintiff’s right of dower attached. The interest that the plaintiff had in this-pier has, I think, been settled by the court of appeals in the case of Bed-low v. Dry-Dock Co., 112 N. Y. 264, 19 N. E. 800. That was an action. *130brought by plaintiff’s husband, with his cotenants, to recover the possession of this pier, and it was decided that the plaintiff and his cotenants were entitled to such possession. In the opinion deciding this question the interest that the plaintiffs had was quite exhaustively' discussed. It was there held that the deed from the city to Rutgers gave to the grantee all the land between high and low water mark necessary to establish a street and wharf in the harboit that the terms of the grant expressly contained land lying between high and low water mark, extending from the grantee land on the north to the harbor on the south; and that the plain purpose of the grant was, among other things, to enable the grantee to construct a wharf on the land granted, accessible by water at all times from such harbor, and which should form the extreme southerly line of the city at that place. It was also held that this right to build and maintain a wharf would carry with it the right to collect wharfage, and the right to unobstructed access to the wharf over the water of the harbor, and the Rutgers thereby acquired the right, not only to the use and enjoyment of the premises conveyed, and of all easements connected therewith, but also the right to make all such erections and improvements thereon and additions thereto as should contribute to his profitable enjoyment; that he could lawfully make new erections upon the land conveyed, or additions to those already there; that he could also extend and improve the wharf so as to increase its facilities to build a pier attached thereto, provided that they obtain the consent of the city therefor; and that the building of the wharf or pier by Rutgers’ tenants inured to Rutgers’ benefit, and, upon the determination of the tenancy, Rutgers was vested with the title of any structure remaining on the demised premises as a fixture annexed to the freehold. It follows from this that Rutgers was the owner of the fee of the street built by him upon his lands under the covenant contained in the grant before mentioned, which, of •course, was subject to the public use. He, however, owned something more than the bare naked fee of a piece of land dedicated to the public use, as he was also entitled to the wharfage of the wharf or pier on the south side ■of the street, and that right was one that the city -could not deprive him ■of without compensation. And upon the building of the wharf by his tenant, with permission of the city, that wharf became appurtenant to his fee ■of the street, being a mere extension of the right of wharfage that he had upon the wharf erected on the south side of the street. And I think it clearly follows from the whole opinion of the court of appeals in the case before cited that the interest of the plaintiff in this property was clearly within the statutory definition of “lands,” and that the plaintiff’s husband was seised of, and in possession of, one-sixth thereof. The elaborate brief presented by counsel for the defendants would appear to be rather in the nature of an application to review the decision of the court of appeals in the case before cited, than to apply the principle established by that decision to the question here to be determined. I think it clearly follows, applying the principles established by the court of appeals in the Bedlow Case, that plaintiff is entitled to dower in the one-sixth interest of her husband in the property in question, and that she is entitled to judgment accordingly; the decision and judgment to be settled on notice.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

George W. Stephens, for appellants.

William A. Duer, for respondent

PER CURIAM.

In Bedlow v. Dry-Dock Co., 112 N. Y. 263, 19 N. E. 800, which was brought by the husband of the plaintiff to re- . cover possession of the property in which dower is sought to be recovered by this action, it was1 held that he had a legal estate in the pier, which could be recovered in an action of ejectment. It is familiar law that an action of ejectment will not lie for an easement or a *131right in gross. The case cited necessarily holds that the plaintiff’s husband had a legal estate in this pier, which, had he remained its owner until his death, would have descended to his heirs. A widow is entitled to dower in an estate of inheritance of which her husband was seised during marriage. Every estate in lands, except such as are determined by the death of the holder, leases for years, and an estate upon the life of another is an estate of inheritance, and descends to the heirs subject to the widow’s right of dower therein. 1 Rev. St. p. 754, § 27. Under the facts found, which are supported by the evidence, and the decision above cited, the plaintiff’s husband had an estate of inheritance in the pier, and she is entitled to dower therein, which is shown by the opinion of the learned trial justice, which covers the case; and the judgment should be affirmed on that opinion, with costs.