New York City Water Front. LETTER FROM SIMON STEVENS TO THE Commissioners of the Sinking Fund, RELATIVE TO THEIR POWERS AND DUTIES, AND THE POWERS AND DUTIES OF THE DOCK AND LAW DEPARTMENTS, IN THEIR SEVERAL RELATIONS TO EACH OTHER IN REGARD TO THE IMPROVEMENT OF THE WATER FRONT OF THE CITY OF NEW YORK. From the "City Record," January 22, 1889. NEW YORK : Martin B. Brown, Printer and Stationer, 49 and 51 Park Place. i88g. Avery Architectural and Fine Arts Library Gift of Seymour B. Durst Old York Library New York City Water Front. LETTER FROM SIMON" STEVENS TO THE Commissioners of the Sinking Fund, RELATIVE TO THEIR POWERS AND DUTIES, AND THE POWERS AND DUTIES OF THE DOCK AND LAW DEPARTMENTS, IN THEIR SEVERAL RELATIONS TO EACH OTHER IN REGARD TO THE IMPROVEMENT OF THE WATER FRONT OF THE CITY OF NEW YORK. From the "City Record," January 22, 1889. NEW YORK : Marti jl B. Brown, Printer and Stationer, 49 and 51 Park Place. 1889. Ck -» Q the City. For about three-fifths of this distance the wharf rights belonged to private parties. The Dock Department took possession of these about the year 1875, without the consent of the private owners, and without compensation to them. This was done under the ad- vice of the then Counsel to the Corporation. Not till 1884 did the City acquire, by purchase, and settle with any of the private parties for their wharf property, except for about ninety-five feet three inches, between Charlton and Spring streets, out of a total of about two thousand feet, between Canal and West Eleventh streets. The remaining private " wharf property " or rights between Canal and West Eleventh streets thus taken and not paid for is in litigation. It has been thus slumbering for about thirteen years, without affirmative action being taken by the Law Department of the City to attain a final decision which would serve as a precedent to govern future action by the Department of Docks. 26. Referring to section 715 you will observe that it is the duty of the Dock Commissioners, if they desire to acquire a piece of property to which the Corporation of the City of New York has then no right or title, they must negotiate for it, and, if possible, agree with the owners upon the terms and conditions for its purchase. If they succeed in doing this they must certify such agreement to the Commissioners of the Sinking Fund, and if the latter concur, the Dock Commissioners shall take title in the name of the Corporation. The same must then be paid for as provided by law, if the title to that which is purchased is good and sufficient. It is provided, however, that if the Dock Depart- ment is unable to agree with the owners upon a price, and the terms of payment, the Department may, in that event, direct the Counsel to the Corporation to take proceedings to acquire the same for the City in the same manner that property is acquired for public streets and places. 27. The question for the consideration of the Commissioners of the Sinking Fund is, whether or not the Dock Commissioners, in the exercise of their duties and functions, have made a judicious agreement for the purchase of the private rights, titles, easements and privileges belonging to private parties. If they should deem the purchase advantageous to the City, they will, as a matter of course, approve of it ; if not so regarded, it is certainly their duty not to approve it. The law seems tc require that the Dock Department shall make the effort to agree with the owners. If it fails, then to take the alternative of directing the Counsel to the Corporation to take proceedings to acquire the property. 28. Certainly, the three Dock Commissioners are, by law, made the judges of the necessity and propriety of acquiring any and all wharf property in this city to which the Corporation of the City of New York has then no right or title. In the exercise of that right, it is the duty of the Commis- sioners to examine the property they desire to purchase and make every investigaiion requisite to 8 acquire a full and true knowledge of its value. After satisfying themselves on these points, they can enter upon negotiations with private owners for its purchase, but always with the understanding that, in the event of agreeing with the private owners, such agreement shall be subject to the approval of the Commissioners of the Sinking Fund before the City can pay for it and take title. 29. I find no law, written or unwritten, save the "opinion " that Mr. Carter gives you, that authorizes the Dock Department to acquire property for the City through brigandage. 30. The functions of the Corporation Counsel are, by statute, limited to questions of law and modes of procedure — any attempted interference with the duties of the Dock Department and Sink- ing Fund Commissioners in fixing values is simply unwarranted. 31. The Mayor of New York, the Recorder, the Comptroller, the City Chamberlain and the Chairman of the Finance Committee of the Board of Aldermen compose the Board of " Commis- sioners of the Sinking Fund." In reviewing the actions of the three Commissioners of the Dock Department, they are as capable of forming as sound a judgment of the true value of any property under consideration as any three Commissioners that might or could be appointed by any court in proceedings of condemnation. If the agreements are not approved by them, they fall to the ground. In that event, the powers of the Dock Department, under section 715 of chapter 410 of the Laws of 1882, are exhausted. 32. In 1882 the Dock Department selected for improvement, on South street, a locality on the East river, next south of Wall street, hoping thereby to relieve traffic on South street, and benefit commerce in that part of the city. Agreements were entered into with the private owners for the purchase of their interests in Piers 12, 13 and 14, East river, together with that in the bulkheads intervening or incident thereto. These agreements were submitted to the Commis- sioners of the Sinking Fund for their approval, as required by law. Owing to technical objections raised by the Counsel to the Corporation, notwithstanding the decision of the Court of Appeals in the Langdon case, they were not approved, although the time for closing the title was postponed, from time to time, for over three and a-half years, by the Dock Department and private owners, at the request of the Counsel to the Corporation, to enable a compromise to be effected, if possible. The Corporation Counsel, after these repeated prolongations, raised new points and insisted that the agreements should be remodeled so as to apportion the total value of the wharf rights or property by placing part of the value on the bulkhead, part on the piers, and part on the land under water. The private owners declined such apportionment, claiming that their interest? were so interdependent that no apportionment of values could be made with fairness and justice. Finally it was proposed that a "case " be submitted under the 1279th section of the Code, upon a " conditional approval " of the agreements by the Commissioners of the Sinking Fund. This last proposition was declined by the private owners because a "conditional approval " by the Commis- sioners of the Sinking Fund was not such an " approval " as would give the " case " a standing in court. All further efforts in that direction were, therefore, abandoned for a time. 33. In 1884, the Department turned its attention to the purchase of private property most desirable for its purposes on North river, between Hubert and Harrison streets, and succeeded, with the approval of the Commissioners of the Sinking Fund, and under the advice of the then Counsel to the Corporation, in acquiring the following pieces from my clients : 34. From Messrs. Brower Brothers — 100 feet of bulkhead next south of Hubert street, at the rate of $600 per front foot, for say $6o,oco 00 From C. P. Huntington— 50 feet of bulkhead next nortli of North Moore street, including a new shed, at $650 per toot, say for 32,500 co From Charles F. Southmayd — 87)^ feet of bulkhead next south of North Moore street, including shed, at $635 per foot, say for 55,562 50 From Messrs. Skidmore — 87^ feet of bulkhead next north of Franklin street, at $600 per front foot, say for 52,500 00 From Messrs. Clarkson — ioo feet of bulkhead next south of Franklin street, at $5oo per foot, say for 60,00c 00 Making a total purchase in that vicinity, that year, of 425 feet of private bulkhead for. $260,562 50 9 35- The same year the Department purchased 26 feet 6 inches of bulkhead next south of Warren street, known as the Drake property, at $547 per front foot, or say for $14,250 00 The two parcels of property were also purchased between Charlton and Spring streets, heretofore referred to as having then already been filled up in front of by the Dock Department, at the rate of $550 per lineal foot, including release of damages, or say for 52,389 50 Making a grand total, for purchase, in thirteen years, of private property, for say. . 327,192 00 36. On December 3, 1884, in view of contemplated further improvements, the Department of Docks applied to the Commissioners of the Sinking Fund for an issue of bonds to the amount of 1,950,000 CO 37. Under this application, in view of the constitutional amendment which had then just been adopted, limiting the issue of bonds under certain circumstances, the Commissioners of the Sinking Fund only authorized the Comptroller to issue bonds to the extent of 700,000 00 On April 3, 1885, the Dock Department had to its credit only 562,722 69 In June, 1885, the Department applied to the Commissioners of the Sinking Fund for the issue of bonds amounting to 2,coo,ooo 00 38. This application was granied in July, but immediately afterwards the Comptroller was enjoined from issuing the bonds. Thus the Department of Docks was substantially brought to a standstill — the injumction holding till May, 1886, when it was dissolved by the Court of Appeals, reversing the Court below. On April 30, 1886, the Department balance was reduced to 193,470 co 39. In June, 1886, after the decision of the Court of Appeals in the case of the Bank of Savings vs. The Mayor, etc., in relation to the constitutional limit of municipal indebtedness, I called upon the Mayor, Comptroller and Recorder in behalf of my clients, the owners of private property, to make inquiry as to when the Commissioners of the Sinking Fund would probably act in the matter of issuing " Dock Bonds" for the use of the Dock Department. Each of the Commissioners of the Sinking Fund above referred to replied that the Dock Department should again officially ask for the issuance of bonds they were entitled to for dock purposes. 40. On July 15, 1886, the Dock Board passed resolutions making that request. The Com- missioners of the Sinking Fund referred the application to the Comptroller for examination and report. The latter, at my suggestion, asked the Dock Commissioners to submit, for the information of the Commissioners of the Sinking Fund, a statement of the objects and purposes for which the Department desired the money. 41. In compliance with the request from the Comptroller, the Commissioners of the Department of Docks, with the aid of their Engineer-in-Chief, prepared and transmitted a memorandum of the objects and purposes for which the Department of Docks needed the money asked for, under its resolution of July 15 and 22, 1886. (See the list referred to and a subsequent list on file in the Comptroller's office.) 42. Late in August, 1886, at the request of the then Comptroller, I addressed a communication to the Commissioners of the Sinking Fund, in which I undertook to give some account of how New York acquired her water-front two hundred years ago, and under what laws, rules and regulations wharves, streets, bulkheads and piers have since been built, and other improvements made, and how trade and commerce are now crippled in divers ways for want of additional improvements and facilities which the Dock Department is authorized and desires to make, and for which it had asked for the issue of bonds as provided by law. That communication was presented by the Comptroller at the next meeting, September 17, 1886, and was ordered to be printed with their minutes. (See City Record of September 22, 1886.) At the same meeting the Comptroller presented a report recommending an appropriation, and a resolution was accordingly adopted authorizing and directing the issuance of S2,ooo,oco of Dock Bonds. IO 43. Although the Dock Department applied for the $2,030,000 of bonds in July, 1886, as pre- viously asked for in June, 1885, this application was not acted upon by the Commissioners of the Sinking Fund until the 17th of September, 1886. It was not until the 12th of November following that the Dock Department received notice from the Comptroller that he had sold $5^0,000 of the bonds for $517,577.50, and had placed that amount to the credit of the Department of Docks. f^44. As that money was shortly to be available, the Dock Commissioners requested my clients to submit to them propositions for the sale to the City of certain bulkhead rights or wharf and pier properties. 45. Accordingly, at the request of the Commissioners of Docks and by direction of my clients, Mr. Frank Phelps and others, I submitted a communication on the 29th day of September, 1886, enclosing the draft of an agreement under which they would sell to the City 100 feet of bulkhead rights on West street, next north of Beach street, including a release of damages, for $65,000. 46. On the same day I submitted a similar letter on behalf of my clients, the executors of the estate of Moses Taylor, deceased, and others, accompanied with drafts of agreements as requested by the Commissioners of the Department of Docks, in which were stipulated the terms and condi- tions under which they would sell and convey to the City of New York 404 feet 6]/ 2 inches of bulk- head rights on the easterly side of South street not owned by the People of the State of New York or the Corporation of the City of New York, together with their respective interests in Piers 12, 13 and 14, East river. This property is described as commencing at a point on the bulkhead where, if the line of the northerly side of Old Slip were extended, it would inter ect the said easterly side of South street, and running thence northerly along said bulkhead in front of and opposite to store numbers 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 and 55 South street, and in front of Gouverneur lane and Jones lane, a total length of 404 feet 6j4 inches. The price was at the rate of $1,000 per lineal foot front of bulkhead. 47. Upon a like request, I submitted a draft of an agreement on behalf of S.Charles Welsh, executor, etc., for the sale to the City of seventy-five feet of bulkhead rights or wharf property on West street, next north of Harrison street, at $600 per foot, or say for the total sum of $45,000. 48. All the above propositions, after due consideration by the Dock Commissioners, and much negotiation, were duly accepted, and on the 4th, 10th and 17th of November, and the 17th of December, 1886, respectively, under the 715th section of chapter 410 of the Laws of 1882, agree- ments in the name and by the Mayor, Aldermen and Commonalty of the City of New York, acting by the Department of Docks, with private persons, were entered into for the purchase of the private wharf property on the North and East rivers as therein described, subject to the approval of the Commissioners of the Sinking Fund. 49. These agreements were transmitted in due time to the Commissioners of the Sinking Fund in compliance with the law, and at their meeting on the 27th day of December, 1886, were referred to the Comptroller for examination and report, together with the communications from the Commis- sioners of Docks, transmitting the same, and of the Counsel to the Corporation in relation thereto. (See City Record of January 3, 1887. ) 50. They were as follows, viz. : 1. Agreement with the executors of the estate of William S. Chamberlain, deceased, and the heirs of George A. Phelps, deceased, for the sale of one hundred feet of bulkhead on North river, between Beach and Hubert streets. 2. Agreement with the executors of the estate of Moses Taylor, deceased, and others, for the sale of one hundred and twenty-four and one-half feet of bulkhead on South street, between Old Slip and Wall street, with their interests in Piers 12 and 13, East river. 3. Agreement with Edmund H. Schermerhorn and others, for the sale of one hundred and eighty and one -half feet of bulkhead on South street, between Old Slip and Wall street, with • their interests in Piers 13 and 14, East river. 4. Agreement with S. Charles Welsh, executor, etc., of the estate of George W. Welsh, deceased, for the sale of seventy-five feet of bulkhead on West street, next north of Harrison street. 1 1 51. From December, 1886, to the present time, no report on these contracts has been made by the Comptroller, nor, as far as I can learn, has any action been taken by the Commissioners of the Sinking Fund in relation to them, as required by section 184 of chapter 410 of the Laws of 1882. 52. On June 25, 1887, your Board deemed it expedient that the City should complete its pur- chase from my clients, the Old Dominion S.eamship Company, of one hundred and twenty-five feet of bulkhead next south of Beach street, at the rate of $6oo per lineal foot front, or for a total, say of $75,000. 53. It would seem apparent that the same "expediency " or necessity exists for the completion of the purchase of the Welsh and Chamberlain-Phelps properties that existed at the time of pay- ment for that of the Old Dominion Steamship Company. 54. This " Old Dominion Steamship " property lies between the Phelps and Welsh properties. It was contracted for, and an agreement for its purchase made under precisely the same conditions that the Phelps and Welsh agreements were subsequently contracted for, and similar, also, to the contracts that have been fulfilled with the two Browers, Mr. Huntington, Mr. Southmayd, the Skidmores and Messrs. Clarkson, for bulkheads purchased, between Harrison and Hubert streets. 55. Whenever the Phelps-Chamberlain and Welsh contracts shall have been carried out, by the approval of the Commissioners ol the Sinking Fund, the Department of Docks will then have acquired one continuous line of bulkhead on West street, on which to complete new improvements between Harrison and Hubeit streets, a distance, including streets, of 920 feet, at a total cost of S445. 030 - 56. For more extended particulars and reasons why the Dock Department desires to acquire the Phelps-Chamberlain and the Welsh properties specified in those agreements, I refer you to the correspondence in relation thereto, printed in the proceedings of the Commissioners of the Sinking Fund of October 7, 1887, on pages 166-170, accompanied by a map of the properties. 57. The contract for the Dry Dock property on East river is in a similar condition. The same may be said of the contract for the purchase of fifty feet of wharf rights on North river, next south of Morton street. 58. To acquire the private "wharf rights" on any part of the water-front there must be a willing and hearty co-operation by the Commissioners of the Sinking Fund and the Law Depart- ment with the Department of Docks. Otherwise commerce will continue to suffer for the lack of these contemplated improvements. They certainly cannot be made if there is a want of harmony. If hearty co-operation is given the Dock Department it can make New York the finest harbor in the world, with suitable piers for Us commerce. 59. The revenue collected by the Department of Docks from leases, rents and wharfages, in the last three years, has far exceeded its disbursements which have been principally for repairs only. In fact, for the last four years, permanent improvements have been nearly at a stand-still. In conse- quence of the policy pursued, the commerce of New York has suffered and will continue to suffer embarrassments to an extent much greater than the amount of money involved in the cost of improvements. 60. If the contemplated purchase of bulkhead rights on North river, which could have been made at the rate of S600 to S650 per lineal foot, had been made three years ago, with bonds bearing interest at the rate of three per cent, per annum, the City would be now in receipt, certainly, of from twelve per cent, to fifteen per cent, on the cost of the above-described property and its improvements. 61. The question has been raised as to whether the City could acquire wharf property from private individuals under the right of " eminent domain." Therefore, I beg to state that learned counsel have advised individual owners that the title to their private wharf rights and property, which, in some instances, runs back nearly two hundred years, is held by grants for public use, and that under the Constitution of the United States and the State of New York, the Legislature does not possess power to simply change the ownership from one to another when the property is intended, after the change, to be held for the same public use to which it is now devoted by private owners. It is a question, which, if raised in the courts, would take years to test. In the meantime, would it not be well to make, if possible, some amicable arrangements at reasonable prices, rather than for I 2 the Counsel to the Corporation to antagonize and disagree with private owners, who declare that they 11 want nothing but what is right, and will submit to nothing that is wrong " ? 62. If the Commissioners of the Sinking Fund would accompany the Dock Commissioners on a tour around our dilapidated water-front, 1 think they would find scope for all their energy. Few realize the loss that the City has actually sustained in the last ten years by reason of the "do- nothing " policy that has prevailed. Strangers say " what unsightly, broken-down piers for a great city." As rapid transit has built up New Jersey and Brooklyn at the expense of New York, just so have the water fronts of other cities been developed at New York's expense. The loss is simply astounding. The valuation of Brooklyn wharf property has increased within ten years fully $40,000,000 and that of Jersey City and Hoboken fully $15,000,000, two-thirds of which has been a direct loss to New York. Brooklyn could not have done better even had her own officials been openly in control of the water-front of New York. Some of her citizens, however, have shown remarkable interest in these matters, and their counsels seem to prevail, and prevent improvements in South and West streets. 63. A careful examination of the " memorandum list of properties the Dock Department desired to acquire and improve " will reveal how much ought to be done, and what can be done at moderate cost. The total revenues of the Department of Docks since its organization in May, 1870, to April 30, 1888 $15,361,306 32 The total expenditures of the Department of Docks since its organization in May, 1870, to April 30, 1888 (of which $607,327.85 was for the acquisition of wharf property and the value of floating plant on hand, $176,900) 13,629,069 63 Excess of revenue over expenditure $1,732,236 72 65. Probably not more than $3,000,000 of the expenditures have been for actual permanent improvements, the balance was doubtless, for administration, repairs and maintenance. It will be seen, therefore, that the revenues have already provided, not only for all the property purchased and Dock Bonds issued, but $1,732,236.72 in excess. 66. If you were to inaugurate anew policy, and the City begin by annually investing $2,oco,oco for ten years, in permanent improvements on its water-front, and use the other million for administra- tion, repairs and maintenance, you would revolutionize everything. The investment would pay in every direction. The money could be secured in bonds at three per cent.; the improvements would bring to the City a net revenue of not less than ten per cent, on the investment. The recognized policy of the City should not be to secure the ownership of the entire water-front ; one-half should be its limit, and it already owns about one-third to three-eighths. Such an investment as I have men- tioned would be sufficient to secure and improve the City's half of the water-front on both rivers below Thirty-fourth street. Private owners should be required to improve their holdings on the new plan, and each build large and ample piers on piles and stone bulkhead walls, with such a wide water-front street as West street now is, between Canal and West Eleventh streets, on the North river. 67. The Dock Commissioners have only made a beginning, though they have been striving for sixteen years to accomplish their mission. They have, until this year, done comparatively little else than repair old and rotten bulkheads and piers, except between Canal and West Eleventh streets, where the result?, commercially and financially considered, are satisfactory. They have not been fully sustained by the Commissioners of the Sinking Fund or the Law Department. They should not only be in full accord with each, but there should be manifest energy, thoroughness and intelli- gence united to carry out this vast improvement so much required by the business interests of New York. Y r ou have the power to give new impulse to this policy of improvement. The Dock Com- missioners and the Engineer-in-Chief are most heartily in sympathy with these views and are doing ail in their power, with their present means, to accomplish their mission in that Department. 68. Who should be held responsible for this state of affairs ? 69. The Department of Docks, in the last ten years, could have economically acquired all the l 3 private rights and improved the entire water-front on North and East rivers, below Twenty-third street, and now be in receipt of a net income profit, over and above the interest on the bonds that woild be sufficient to pay the cost of private property, and the costs of its improvement every twelve years. Besides this direct profit the improvements would greatly enhance the value of taxable property on the marginal streets and vicinity, and give shipping accommodations to merchants and traders who would handle millions upon millions of dollars more than can now be done. 70. A vast amount of property, now useless, could be made highly valuable — a wide marginal street on North river and at some places on East river, is of the greatest importance to merchants, warehousemen and truckmen. There are upwards of $25,000,000 invested in truckage in New York. South street below the bridge, and West street below Canal street, are so narrow that they are blockaded for hours every day by tracks, which, in those localities, cannot average more than two loads per day. With streets widened, like West street, between Canal and West Eleventh streets, they can do five loads per day. What a loss to that industry as well as to the merchants, railroad and steamship companies ! This loss alone is greater than would be the interest on a bonded debt that the whole property and improvements would cost. 71. You will readily see what that loss means to the business interests of a city like New York, where minutes are dollars. 72. In widening out these marginal streets, one hundred and eighty feet on West street, so as to make it two hundred and fifty feet, and South street by one hundred and thirty feet, to make it two hundred, when completed, the Dock Department could utilize, as filling, the one million five hundred thousand cubic yards of coal ashes and cellar dirt that is now emptied into scows, and, at an expense of several hundred thousand dollars per annum, is wasted by being dumped into the bay, or off the mouth of the harbor, to the detriment of the port of New York. Was it not a wise provision for the commercial interests of this city that Congress intervened and authorized the appointment of a supervisor of our harbor? 73. I shall now make an effort to show and, if possible, convince you, that either the Counsel to the Corporation, and his special adviser, or the Court of Appeals, are wrong in their opinion in relation to the rights of parties claiming to own the water-front of the City of New York. 74. I cite the 724th section of the Consolidation Act of 1882, which reads as follows : "The terms 'property' and ' wharf property,' whenever used in this title, shall be taken to " mean not only all wharves, piers, docks, bulkheads, slips and basins, but the land beneath the " same, and all rights and privileges and easements thereto." 75. Mr. Justice Earl of the Court of Appeals in the Langdon case fully defines what is "property " under the statute ; the same Court reaffirmed that doctrine in the Williams case, and asrain in the Kingsland case. 76. Mr. Justice Finch, in delivering the opinion of the Court of Appeals in the case of Williams vs. the Mayor, etc., maintains " that the State had granted to the City of New York, by " several acts, a general right to build and maintain wharves, piers and slips along the water-front, «' wherever the municipality should choose, and giving it power to occupy and possess the lands of " the State under water, so far as needed for the purpose intended. It needed no authority from the " State to erect wharves on its own land ; what it did need was a right to build them on land under " water owned by the State, and safety and protection for them when built. * * * That "in 1801, to the City was given the grant of a general power to build and maintain wharves, " and in 1806 the right was granted ' to cause piers to be sunk in such places and manner as they *■ 1 should think eligible, between Whitehall Slip and the east side of Exchange Slip, and also at " ' their own expense, to cause such and so many other public basins to be formed and completed in «' 'said city as they may deem necessary for the trade thereof, and to take to their own use the " ' slippage or wharfage arising from the same.' " 77. The act of 1813 was broader and seems to have been a substantial re-enactment of the act of 1801. It provided " that it shall be lawful for the Mayor, Aldermen and Commonalty of the " said city, in Common Council convened, to lay out wharves and slips in the said city whenever " and wherever they should deem it expedient. The authority thus given being commensurate with 14 " the municipal limits, involved a grant of so much of the land of the State under water as those " wharves would occupy if the City's choice of location required such appropriation. This right " was tantamount to an ownership ; it embraced the entire beneficial interest, and was inconsistent " with the title remaining in the State. " 78. " But this general grant of authority to build wharves and take their use and product "involved another right. We decided in Langdon vs. The Mayor (93 N. Y., 129) that a wharf ** right so implied a right of approach for vessels, that its grant carried with it an easement for such " approach over the grantor's land under water lying in front. The act of 1813 fully recognized " and protected that easement. It, in terms, forbade after the City had located its dock, any filling M or the erection of any structure in its front, and so by its own act incapacitated itself without the " assent of its grantees from destroying or obstructing the easement given. So 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 ease- '* ment for approach of vessels in its front. That easement the State, by its own sole action, could " not take away or destroy without awarding adequate compensation. To say the contrary would " be to declare that after the City, under its authority from the State, has completed its entire system " of wharves and piers at a cost of millions, the State may yet destroy it all in violation of its own M self-imposed prohibition by building in front on its own land under water ob>tructing docks or " walls. " ****** " If we go back a little along the current of legislation we shall find in the Revised Laws of " 1813 the reason and the basis for the assumption and the language of the act of 1857. By the " terms of the earlier act, the City, already authorized to build wharves where it pleased, within the " corporate boundaries, was further and expressly authorized to compel the riparian owners to build " such wharves at their own expense, and where there was open space between the land and the wharf " to require such proprietors to fill up and level at their own expense, according to such plans and • ' by the said days respectively, the spaces lying and being between their said several lots and the " said streets and wharves ; and shall, upon so filling up and leveling the same, be respectively " entitled to and become the owners of the said intermediate spaces of ground in fee simple. " 79. "Of course, if the City was the upland owner, with an open space between its land and the " new wharf, it had the right to fill it in and thereby become its owner. By this act the State " granted to the City and to the upland owner the right to fill out to the permitted wharves, and " vested title to the new-made land in the adjoining owners. The line of solid filling, therefore, " permitted by the State was exactly synonymous with the bulkhead-line. When the City was " restricted in its general right of building wharves to limits within exterior lines, it was natural " equally to restrict the solid filling permitted within the same lines. We do not think it alters the " case that this grant, by the State, was to persons compelled to fill under the terms of the act. " Where the City itself was adjoining owner the compulsion became a privilege or right ; and it is " quite possible that as to the citizen a similar change occurred. We may infer from the constant " repetition of grants that what at first was a burden under compulsion soon became a benefit and " was sought as a privilege ; and so, instead of the compulsory direction of an ordinance, the City " gave the same direction and with the same results, by the terms and stipulations of a grant. And " thus we discover the assumption upon which the Laws of 1857 rested, and see in it a clear recog- " nition by the State that its removal of the exterior bulkhead-line further into the stream carried " with it a surrender by the State to the City, or its grantees, or the upland owners of its land under " water behind the new wharves whenever they should be constructed. Why should the State " have done otherwise? How could it have done otherwise unless it meant not only to throw the " necessities of an enormous commerce upon the City, but to hamper and obstruct the bearing of " that burden by withholding a right useless to itself? And so I reach the conclusion that the State " did, by its earlier acts and their recognition in 1857, permit solid filling on its lands under water " within the bulkhead -lines, and by that process part with its title and transfer it to him who law- " fully made the new land as an approach to the docks. And this view is further strengthened by 15 ** the two facts that the State has seen this process going on for about half a century without once " interfering or asserting a hostile right, but, on the contrary, has given to the City, whenever " requested, formal conveyances of its land so occupied." 80. While speaking of the grants, the learned Judge goes on to say : " The municipal authorities either at that date understood their rights as we do, or else perpe- " trated a deliberate fraud upon an unsuspecting purchaser. " 81. " Much was said on the argument as to the rule of construction applicable to grants by the " State. The subject was fully considered in the Langdon case, and need not here be resumed. " 82. " It seems only necessary to add that \ve do not view the grant by the State to the City as " without consideration and purely and simply a gift. The State owned but a single seaport open " to commerce and touched by tide-water, and that one a harbor of remarkable size and con- " venience. Its interest to concentrate there ships and cargoes from all parts of the world by pro- " tecting the harbor and lining it with docks and piers was very great, and took on the character " of a duty due to the prosperity of the Commonwealth. It early imposed that duty upon the City " and the citizens, by whom it has been steadily performed at very great cost, and one in the future " to be largely increased. Every grant the State made was in aid of the expenditure involved in the " performance by the City of that duty and in consideration of that performance. Little enough " of its own duty has been borne by the Slate, and to call that little a pure gratuity amounts to " sarcasm." 83. "The act organizing that department will, and was intended to, change entirely the water- " front system of the city. Upon the new line the municipality is to build all docks and wharves " and piers, and own them all, and the old plan of wharves and piers owned by individuals is to be " swept away. But by the act, the rights of private owners are respected and there is not in it a " word or line of meditated spoliation. The wharf property of citizens may be taken, but must be " paid for fairly and in the ordinary manner. " 84. The same learned Judge in delivering the opinion of the Court in the Kingsland case, argued by the same counsel, says : " We have already determined that the destruction of the wharf rights belonging to private " owners, consequent upon the construction by the City, under the act of 1871, of an exterior line ' 1 of docks owned and controlled by the municipality, involved the necessity of compensation to " such owners for the property rights thus taken away (Langdon vs. Mayor, 93 N. Y., 129 ; Williams " vs. Mayor, 105 N. Y., 419). What shall be the measure and basis of that compensation is the ' ' question now presented, and in a form which excludes damages for a tort or redress for a wrong, " but treats the case solely as one in which the City takes, by right of eminent domain, the private " property destroyed, and is simply bound to pay the fair and just value of what is taken. The " parties litigant disagree widely as to that value, and mainly because certain privileges and inci- " dental conveniences have become associated with the wharf rights as owned and possessed, and " have added enormously to the prices along the water-front." 85. "Originally, as we have elsewhere said, the duty of building wharves and exterior streets " and filling out to them was imposed upon the riparian owners, and was, perhaps, for a time, " more of a burden thau a benefit, since such owner gained no exclusive rights in the wharf at his " water front beyond that of the sums payable as wharfage, cranage and dockage by the vessels " enjoying its use. The wharf or exterior street was a public wharf, open to the commerce of the " port and the free passage of the people, and authority to incumber it was only wanting from its "inherent nature and character; but any such incumbrance was positively forbidden by statute. " Nevertheless, the needs and convenience of commerce, and the persistent encroachments of " private interest gradually pushed aside the prohibition of the law, or modified its restraints by 11 new legislation. Lines of steamers sought and obtained exclusive privileges at particular wharves, " paying rentals therefor, which steadily grew to very large amounts." ****** 86. " Of course, this reservation of a public right was rather formal than real, and the pref- " erential use became in fact an exclusive use, since the lessee would be sure always to need the i6 *• dock facilities, and the public would avoid a wharf from which they were liable, at any moment, "to be removed. This privilege of exclusive use was a governmental regulation, indicating a " settled and permanent policy, and over which the City has no control. It necessarily added " value to every bulkhead or pier which the steam commerce of the port desired to lease and occupy, M f>r it gave that commerce a permanent home at the water-front, and secured to it undisturbed "facilities for the transaction of its business. Previous legislation had gone no further than to " permit the assignment of classes of vessels to specific localities, but leaving their rights at such " points equal and without preference." 87. After duly considering the " evidence " and the " points " made by appellant and respondent in regard to the rights of the City, as well as of those of the individuals, the learned justice pro- ceeds in these words: "Our investigation thus far discloses that the plaintiff, as owner of his " wharf right, was entitled to the wharfage which it yielded and such added value as its privilege " of preferential use when leased to the adjoining steamboat line would give it, but beyond that had " no other right as incident to his ownership. Neither he nor his lessees had any right to the plat- " fjrm or the shed upon it, and could be stripped of both at any moment by an appeal to the law, " or without that by a revocation on the part of the City. 88. " That revocat on came. The City acted under the law of 1871 by adopting apian which " involved the termination of all private ownership of docks and wharves and the construction of a " new outer line. The improvement finally reached Charlton street. The municipality directed " the removal of the platform and shed in front of plaintiff's bulkhead, and by that direction and the " action taken under it effectually revoked plaintiff's license, if that needed to be revoked, which was * ' never lawful at all and never had any right behind it. The City also constructed a new bulkhead in " front of plaintiff's wharf, cutting the latter off from the water and destroying access by solid filling. " By this latter process it took plaintiff's wharf right with its lawful incidents, and if the judgment " which he recovered had embraced no more than the value of that we should affirm it without " hesitation. But much more than that was allowed." ****** 89. " It must be kept in mind that the subject of valuation is not physical and tangible property ' ' which can be measured or weighed, but an incorporeal right which can only exist by force of the "law and under its shelter (Langdon vs. Mayor, supra), and can never be more than that law " creates or sanctions. The City took and was required to pay for such an incorporeal right, and " its extent or value cannot be broadened or increased, because its situation furnished convenient " opportunity to commit a trespass or maintain a nuisance. Compensation was to be made for a " wharf right, not for a wharf wrong ; for what the law authorized and recognized, not for what it " iorbade and condemned. The City did not take from the plaintiff the right to build a platform " beyond the bulkhead-line and maintain a shed upon it, since he never had any such right to be " taken away. It never had an existence. It stood only upon sufferance, and the sufferance had " ended. Adding the value of the wharf right with its lawful incident of preferential use by taking "into account an unlawful platform and shed, and the chance of maintaining it unmolested is " giving to the property as an element of increased value its convenient situation for violating the " law, and capitalizing the existing and expected profits of that violation." ****** 90. " When the City acted, its inevitable result was two-fold. It operated to destroy the wharf " right which the plaintiff owned, and to that extent took from him hi? property. It operated also as a " revocation of the license or privilege given. The value of the one the City was bound to pay ; the " value of the other it was not bound to pay. It could, as it did, revoke the license by removing or " directing the removal of the platform and shed without the least responsibility for the resulting "injury. That the taking and revocation happened at the same time, cannot alter the inherent " character of either." ****** 91. " We are thus required to say that the referee erred in allowing, as an element of value, the " existing platform and shed, and the chance of maintaining it in future, and so the reversal by the 17 " General Term was right. But we do not hold that the wharf-owner is entitled only to the capital- ized value of his wharfage and cranage, for the law has attached to his bulkhead a right of "preferential use by steamship lines, and this bulkhead adjacent to a steamship pier, and in a " desirable part of the harbor may have possessed a serious increment of value resulting from that "incident. For that value, honestly ascertained and fairly measured, the wharf-owner should "recover, but not for any value resulting from his platform and shed." 92. "The judgment of the General Term should be affirmed with costs, and judgment absolute " for the defendants be rendered on the stipulation. "All concur, except Ruger, Ch. J., and Gray, J., dissenting." 93. The above opinion was delivered early in November last, but later in the month the remittitur was recalled, and on motion, leave was granted to withdraw the stipulation for judgment absolute, as given, and the case was sent back for a new trial upon the principles as to compensation laid down by the court in its opinion. 94. When that new trial will take place no one living can tell. Had the case gone to anew trial from the General Term instead of going to the Court of Appeals, evidence only of statutory wharfage could have been admitted. Now, under the new rulings, advantage of location, together with other incidents may be admitted as increments of value, of whatever " wharf property " may be taken, whether bulkheads, piers, docks, wharves, basins or slips. When the case does go before a jury, the probabilities are that very much increased damages will be awarded the Kingslands. 95. The 724th section of the Consolidation Act, declaring what is " wharf property," has not been declared unconstitutional by the Court of Appeals, nor does the court set aside the 715th section,, which declares in what manner the Dock Department may acquire any "wharf property " that it may desire. Only two modes of procedure are authorized by law. One is by negotiation and agreement to purchase subject to the approval of the Commissioners of the Sinking Fund, the other is by proceedings of condemnation under the right of eminent domain, whenever the Depart- ment of Docks directs the Counsel to the Corporation to take such proceedings. 96. I have shown that certain duties are, by law, devolved on the Commissioners of the Sinking Fund, in one event, and in the other, upon the Counsel to the Corporation. Has either alternative been availed of within the last two years ? 97. I am not aware that the Sinking Fund Commissioners have acted upon either of the four agreements heretofore referred to them by the Dock Department for approval — nor has the Corpora- tion Counsel commenced proceedings of condemnation in certain cases as directed by the Depart- ment of Docks. Instead of doing what the Dock Department has directed, he excuses himself by saying that the private owners of piers have no interest to condemn, therefore, to "take proceed- ings" would be to concede that there were private ownerships in pier property to condemn, "that would be giving their case away." He, as well as the Special Counsel, persists in recommending the Dock Department to seize whatever private piers it desires to acquire for the City's use without compensation to the private owners. May not this recommendation of my learned friend subject him to the same criticism which was made by Mr. Justice Finch on some of his points raised in the Williams case that were then characterized as "sarcasm " ? 98. Mr. Tweed held an important office, was indicted, convicted and sentenced to imprison- ment, not for stealing, but for omitting or neglecting to audit certain bills or claims, the duty to do which was devolved upon him by law. 99. Have not the Commissioners of the Sinking Fund and the present Counsel to the Corpora- tion made themselves amenable to the penalties of the same law, by neglecting, or omitting to perform certain specific duties that had been devolved upon them by law ? 100. The subjoined letter and its enclosure gives the volume and value of the foreign trade of *New York. You will observe that the falling-off in total tonnage entered, and the total cleared, has, in the last five years, been something over 1,000,000 tons less per annum than it was in any one of the previous five years. Is not this, to a very great extent, owing to a lack of increase in wharf accommodations ? New ships of greater length, beam and draft are now being built in Europe for trade with New York. Shall we try to accommodate them or shall we still continue to pay out in litigation, a larger amount than it would cost to purchase the private rights now in dispute. i8 (Copy.) Treasury Department — Bureau of Statistics, ) Washington, D. C, December 7, 1888. j Mr. Simon Stevens, No. 61 Broadway, New York City : Sir — In reply to yours of the 4th instant, I have to state that the amounts of customs revenue collected at the port of New York during the year ending June 30, 1888, were as follows : Duties on imports $144,426,519 94 Tonnage duties t 205,29492 Total $144,631,914 86 Duties on imports from all sources $218,599,867 37 Tonnage duties 491,306 26 Total $219,091,173 63 The per cent, of duties on imports (excluding tonnage duties) collected at New York was sixty-six per cent, of such duties collected in the entire country. A table is enclosed showing the entrances and clearances of sailing and steam vessels engaged in the foreign trade at the port of New York each year from 1879 to 1888. There are no statistics of domestic entrances and clearances. This office has no information as to the draft of steamers entering and clearing at the port of New York. You can procure such data without doubt at the New York Custom House or from the steamship companies. Respectfully, yours, (Signed) WILLIAM F. SWITZLER, Chief of Bureau. (Copy.) Statement showing the number and tonnage of Sailing and Steam Vessels in the foreign trade, which entered into and cleared from the Port of New York during each year ending June 30, from 1879 to 1888 (ten years) . Years. • Entered. sail. STEAM. TOTAL. Number. Tons. Number. Tons. Number. Tons. 1879 6,171 3,031,226 1.397 3,630,599 7.568 6,666,825 6,454 3,3 I 3.274 1,687 4,298,008 8,141 7,611,282 5.243 2,667,391 1,914 4,839> I 3i 7.157 7,506,522 4,622 2,261,658 1.903 5,099,185 6,525 7,360,843 1883 4.332 2,090,991 1,920 4.357.846 6,252 6,448,837 1884 4.103 2,019,101 I ,9 6 3 3.639.770 6,066 5,658,871 1885 3,7i9 1,851,986 2,105 3.8o7,747 5.824 5,659.733 1886 3.685 1,858,834 2,034 3,700,104 5.719 5,558,938 1887 3,740 1,989,599 2,251 4.097.5" 5.99i 6,087,110 3.196 1,674.366 2,165 4,009,915 5,36i 5.683.371 19 Cleared. Years. SAIL. STEAM. TOTAL. Number. Tons. Number. Tons. Number. Tons. 5.565 2,776,987 1.392 3,627,860 6 957 6,404,847 5.687 3,086,722 1,697 4,343,080 7.384 7,429,802 4.984 2,632,754 1.943 4.880,854 6,927 7,513,608 4.253 2,102,677 1,927 5,160,497 6,180 7.263.174 4,018 2,029,829 1,859 4,297,861 5.877 6,327,690 3,622 L 845,030 1,914 3.578,928 5.536 5,423.958 1885 3.235 1,680,295 2,069 3,760,429 5.304 5,440,724 1886 3»*34 1,683,721 2,026 3,704,614 5,160 5.388,335 1887 3.056 1.693,880 2,215 4,085,811 5.271 5,779,691 1888 2,700 L5I7.883 2,157 4. C2 9.559 4.857 5.547.442 (Signed) WM. F. SWITZLER, Chief of Bureau. Treasury Department — Bureau of Statistics, ) Washington, D. C, December 10, 1888. j 101. I have from the New York Custom House, under date of December 12, a report of the number of vessels engaged in coastwise trade entered and cleared from this port, monthly, from July 1, 1884, to June 30, 1888. It shows the total entrances in that time to have been 7,953, and the total clearances in the same time 12,888. 102. I am given to understand, however, that the list furnished does not include a large number of vessels engaged in trade between domestic ports which are not obliged to enter or clear. 103. In view of what I have said, the importance of having the water-front improved either by the City's acquiring all or part of the private " wharf property " or by compelling private owners to improve their holdings, even on the plan of the Dock Department, seems manifestly necessary. 104. A bill to accomplish this purpose is now in course of preparation for presentation to the Legislature at the coming session. Prompt legislative action will alone insure permanent improve- ments on North and East rivers at an early day. I have the honor to be, gentlemen, yours respectfully, SIMON STEVENS. r V \