Year: 1862

Before lion. Judges Ingraham, Barnard and Clegke


Der 25.-Tc People ofthe State Of Nec Pork u.s. Corne
ti1 randcr5in-By the Court-Ingraham, j., J-Ths
action brought restrain the defendant from enarg
Ing pier known No. North river adjoping the Bat
aery Tie right OF the defendant make such enlarge
,ment Is claimed under resolution Of the Common CQun
Gil passed in ls53 granting permission the defendant
% widen the pier extend It to the permanent
hsror line. The right Of the Corporation TO grant such


permission depends upon their title to the land upon which
abe pier was to be erected. This claim OF title in the
Corporation is based upon the act Of March, 1921 which
author zed the Corporation to extend the Battery into the
river exceeding six hundred feet This act vested in
ahe Corporation the title to the soil under the water to
be flied m II this all, there would be question
as t. the right Of the defendant to enlarge the pier,
Except far as IL might afterwards be restrained
ey the act Of 1851 nii establishing s,, new exe,
pies beyond that line But the same act which gave the


right to ill up TO the extent OF 600 feet also con ned the
the Of the land TO be made out OF the
|watcr by limiting the "fr public wax, and for


Erecting buildings and works Of defence thereon but with
but dispose the same for any other use or
purpose whatever and without any power Of selling II or
Any part thereof" This restriction upon the use Of the
defence prevented the Corporation from selling other.


wise dsposing Of any part VI the land so TO be acquired
Of n Sr sny such
void aud breach OF that condition by the Corporation
would Justify the state in any legal measures to prevent
the land for purposes forbidden by the grant, the gantor
would have right to interfere, and application 10
4he Court to prevent such a misuse Of tho land
would clearly be within the province Of court Of
equity. This view OF the question at issue Is
kndepeudcnt Of the act OF 1857, establishing an
nxtertr Ine and prohibiting the extension any piers
eyond that line II II be held that the State could inter-
Esre to prevent the breach Of the condition the grant


that law the passage OF that act docs not
deprive the plaintiffs OF such right II true that way
ms ided by after the pier has been erected Il
may be removed Out the remedy sought In this action
rs TO prevent injury the navigation by prohibiting
xhe erection OF the pier. The power TO compel removal


or an Obstruction after has becn erected docs pre-
went All application the Court to prohibit the erection
of obstruction before IL 10 completed urged Tor
ahe defendant that this only ning portion OF the
nnud under water which was authorized Dy the act
exterior line. and Of itself enough to prevent this
obstruction Of tho river But, independent OF that sta
Aute Is idle to say that this tho filling up conton


plated by the statute, when all the authority OF the de-
Ecndant under the resolution OF the Com
mon Council which granted permission TO the
defendant to widen pier, and the injunction
granted against erecting the pier which the Court
found to be unauthorized and nuisance IL s also
endcd that Judge erred at the trial excluding the
evidence offered by him TO show that the proposed pier
would not be actual nuisance but such question
was ms oved In the issue IL was mmateral whether IL
xould have been actual nuisance or not The real
nues,ion was whether the erection Of the pier
Kbor7cd or not II there no legal authority for the


as ADMISSIBLE TO show that, though illegal, would do
no harm In the language of the learned Justice before
svhotn the oaso tried, "anv encroachmcnt upon a
srnh,c sream was puapesturc-that is, the making OF
Ira, nryae which ought TO be common TO many-and
phatrrc,on ia public river s nuisance, and may be
,o,,i q i'm as such.u Such erection Is nuisance per


and II needs evidence TO prove that, az matter OF
a, after the erection OF u IL shown TO DO IN violation Of
~ , 600 no ground for interfering with tho decision
f,slo.v The udsment must be affirmed, with costs