The New York herald., 1878-10-09
THE COURTS.
A Decision Upon the City's Title
to the Water Front.
COST OF KILLING A WIFE.
Refusal to Vacate the Order OF Arrest
Against Jones and Rogers.

A decision involving questions affecting nearly tho
whole water trout OF the city upon the ultimate
determination OF which will depend millions OF dol
lars was given yesterday by Judge Van Brunt. In Su
preme Court Special Term. the eight suits brought
BY the heirs Of John Jacob Astor against the city
to recover damages and to enjoin the Dock Depart.
ment from completing their system OF piers bulk
heads under the act OF 1S7L In 1910 John jacob
Astor was the owner OF the lands above high water
mark adjacent TO the lands which are hereafter de-
scTibed. and on the lst OF August 1910. tine city
granted and conveyed to him .the water lots vacant
ground and soil under water, to be made
land and gained out of tho Hudson River,
situated In the Eighth ward Of tho city,"
The premises may be roughly described aud
bounded by Washington street the east, Leroy
street on the north, tho Hudson River the west
and King street the south; or, la other words,
these whole blocks with the exception OF narrow
strips Tho deeds Dy which this valuable property
was conveyed contained covenants Tor the u
wharves and bukheads by the grantee and in return
gave MIN the privilege OF collecting wharfage. Mr.
Astor and is successors In the title The present
plaintiffs In these suits, appear have performed all
the covenants, and to have enjoyed the wharfage
tnal Is to say, until within a year or two; whom
the Department oil Docks adopted their new plan
undsr the laws OF 1871 Tor the Improvement of
Guys water 'front.' tho result OF when been, az
far the premises in these suits affected. 10
build now bulkhead l75 feet west OF tho former
bukhsad, 10 hll the intermediate space with solid
hiiing thus entirely preventing the access vessels
TO ths old oulkhsad, and SO deprving the Astor
estate OF the valuable income which they had derived
from the wharfage. The claim OF the plaintiffs
JOIN the erection OF the new bulkhead and tor dam
ages In consequences OF the obstruction ot OF
to the old bulkhead, rested upon both
OF the following bases First, that by OF
original title the riparian owner the lanc above
high water mark, he is entitled TO access to the
wator, and 10 enoln construction OF any
In n.erposed between his land aud tho navigabs
second. COv
granting TO HIM the Wharfage accruing from the West
street Dukhead the CITY precluded from construct
Ing any structure IN front thereof which tends 10
prevent the use of the bukhead by vessels.
After nrst examining AZ great length the title un-
Van Brunt passes to consider the clause deed
or grant OF 1910, upon winch the plaintiffs must base
tins In mis- argument" he says, ..assumed y fact
which, far as have been able to discover, does
not exist and that Is that the westerly line OF the
grant Is described as the permanent exterior line Of
tho city. hnd nothing IN the deed which refers 10
limo is 10 the permanent line Of West street. There
s pothng In the deed which in the moSt remote de-
grcs refers 10 AN exterior line. IL well known
tho parties to the deed tnat tho city owned some two
hundred feet OF land under water beyond the line OF
West street, and only clearest language justify
a court IN holding that the city intended TO mako
large tract Of land subservient to grant made
by them oil premises much less in extent The
napt in this 10 that the grantee shall uy and
freely and enjoy VIII ariage which shall accrue
from the wharfs TO be erected oy him-that Is, he
which shall accrue from these wnaria The covenant
10 not that the grantes shall always be entitled 10
Wharfage, but merely 10 tho wharfage to from
the whars which the grantee to maintain IN the
west end Of the promises granted and when this west
end ceased 10 De the exterior line oil the Guy no
wharfage could accrue, and there could be viola
ton ol the covenant There Is nothing IN the terms
OF The covenant which Is opposed 10 this construc
ton, for the defendants have not bound themselves
not 10 use tho land outsius OF the wharf, nave
they anywhere covenanted that the grantee should
have Tree access 10 THIS wharf over the land owned
by thsm II seems 10 me- therefore, tnat II the right
OF tho plaintiffs 10 this wharfage rests IN covenant
| there has been breach OF the conv0nauL by
reason OF the taking possession by the city OF the
| land outside OF the wharf aud improving H." He
tnen discusses briefly The act oil 1871 creating the
Dock Department, aud concludes TINS branch OF the
subject by saying:-"rhers 10 nothlng In this act
wnicu AZ all contenplates the MAKING Of
compensation for injuries whicn may be sus-
tanned by adjacent premises by lawful use by
the city OF ITS own properly" the opinion closes
as fOllows:-"lh0 conclusion winch have arrived,
therefore, ts that the right OF the plaintiffs their
wharfage resting Ia covenant ana the city not having
in any manner covenanted NOS ~ use land
side OF the wharf ana not having given any
over the land Tor the beneht of tho wharf, tho
defendants have invaded right OF the plaintiff
making use OF The land outside oil West street. Tue
complaint must be dismissed with costsn Messrs.
Richard ;. Emmett, samuel h. Lynn ana Thomas l..
Ogden appeared Tor the plaintiffs, and Mr. William
7. Dean, uis assistant for the city.