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ally; and an affidavit showing the service upon a member of the occupant's family at his place of residence, naming the street, is surely sufficient.

If the requirements were that the service was to be made in New York we think the inference that the service was there made is a fair one, considering that the venue of the affidavit was in that city, and that the taxed premises were there situate, and that service was to be made upon the owner last assessed and upon the occupant.

Sirth. It is also claimed that the affidavit was not sworn to before any officer authorized to administer oaths. It was sworn to before a commissioner of deeds of New York City. The Revised Statutes provided that an oath or affidavit when required in any cause, matter or proceeding, might be taken, among others, before a commissioner of deeds and when certified by him to have been taken before him might be read in any court, or before any officer, judicial, administrative or executive, before whom any such cause, matter or proceeding might be pending. 2 R. S. 284, § 49.

This gave ample authority to the commissioner. The affidavit purports by its venue to have been taken in the City and County of New York, and it is signed by a person as commissioner of deeds. Upon an affidavit with such a venue the presumption is that the person signing himself commissioner of deeds is such within the place stated as the venue.

We have thus gone over the principal grounds relied upon in the brief submitted by the counsel for the appellant. We have also examined all the others. We think there was no error in the decision of the case; and,

The order of the General Term of the Superior Court of the City of New York is, therefore, affirmed, with costs.

All concur.

Henry K. S. WILLIAMS, Respt.,

D.

MAYOR, etc., OF NEW YORK et al., Appts.

1. When the State, by the Act of 1813, granted to the City of New York wharf rights which might extend into the deep water covering its own land, it granted property in the land covered by the wharf and occupied by it, and an easement for approach of vessels to its front; and that easement the State could not, by its own sole action, take away or destroy without awarding adequate compensation.

2. The Act of 1857, settling the bulkhead lines for the Port of New York, operated upon the existing restrictions as to exterior lines and gave the City authority to locate wharves upon land of the State under water at a new line, with an easement of approach in front and of access from the land, and authorized the City to fill up and occupy the open space between the new line and the land as a necessary incident to the use of and access to the new wharf; and such filling, so permitted by the

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State, would give the new made land to the City.

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 lawfully made the new land as an approach to the docks.

Hence, when the City, being owner of the upland in front of which the harbor commissioners' line had been established under the Act of 1857, made a deed to private individuals of "All that certain water lot or vacant ground. and soil under water to be made land and gained out of the Hudson or North River or Harbor of New York and so much thereof as has already been made and gained," etc., together with the "estate, right, title and interest" that the City "may have or may lawfully claim in the premises conveyed, by virtue of their charter and the various Acts of the People of the State of New York," such deed conveyed the right to make and own a solid filling between an old wharf and a new one on the new line, and an easement, as against the State, for the approach of vessels over the land of the State under water in front of the harbor commissioners' line.

While the effect of the Acts of the Legislature is to convey a title to the City to all land belonging to the State between the new bulkhead and the City's old wharf and land, it is not their effect to convey to private proprietors all land belonging to the State between the land of such proprietors and the new bulkhead line, because the private owner has no interest in the new bulkhead which can carry him over the intervening space, and the City has. 6. When a private owner's land and wharf right will be taken away and destroyed by the new extension line and structures of the Dock Department of the City of New York, he is entitled to adequate compensation.

(Decided April 19, 1887.)

APPEAL by defendants from a judgment of the Supreme Court at General Term in the First Department on an amicable submission, directing a reference to ascertain damages to plaintiff from the building of a pier in front of his premises by the Board of Department of Docks of New York City. Affirmed.

For the purposes of this appeal it was agreed between the parties that the judgment of the general term should be regarded as a final judgment, and that the assessment of damages in case said judgment was affirmed be made after filing the remittitur.

Plaintiff held the premises in question, a wharf or dock and adjoining land abutting on the Hudson River between Twenty-Fifth and Twenty-Sixth Streets as extended and west of Thirteenth Avenue in the City of New York,

as grantee of all the right, title and interest, most important public functions, can sustain privileges, etc., that were acquired by Thomas his assertion only by pointing to the express Williams and others, and by Jeremiah Towle, and unequivocal language of the Sovereign under two several deeds from the City of adjoin- contained in some deed or statute. ing water lots, dated respectively December 20, 1858, and November 29, 1859.

The injury complained of was the filling in, in front of plaintiff's premises, and the construction of "pier No. 55" out from said filling, thereby destroying plaintiff's dock and otherwise injuring such premises.

The facts and questions raised appear from the opinion.

Mr. James C. Carter, for appellants: Plaintiff's assertion of title is founded solely upon the conveyance by the City of New York; but at the time that conveyance was executed the City had no title to the land and none could then have passed to its grantee. The State alone had the title.

The only ground upon which the plaintiff makes any pretense that the City owned this land at the time of its conveyances in 1858 and 1859 to the plaintiff's predecessors, is that the Harbor Commissioners' Acts of 1857 and 1858 operated as a conveyance by the State of the tract in question to the City. There is no foundation for this view.

There are no words in either of these Acts importing a conveyance of land; nor was it any part of the purpose of these Acts to effect any transfer of title. Their sole object was to check encroachments upon the navigable waters around New York by drawing a line at which all filling up should be arrested.

It may well enough be that a permission by the State to a riparian proprietor to fill up and occupy land under water in front of his premises would be equivalent to a grant of the fee. But no such permission is contained in the Harbor Commissioners' Acts, and none can be implied. Indeed, were implication in such a case permissible, no ground for it can here be found. The purpose of these Acts was simply to prevent filling up beyond a certain line, not to permit it up to such line. The point is fully covered by authority.

People v. N. Y. etc. Ferry Co. 7 Hun, 105;

S. C. 68 N. Y. 71.

Plaintiff's grantors gained no easement over the land under water in front of their lands. Their grantor, the City, had no lands outside of the grant and could not create any easement over them. And it has always been the settled law of this State that the Sovereign, as the owner of the land under water in front of riparian proprietors, can fill it up and improve it as it may think fit, without giving any ground of complaint to such proprietors.

Gould v. Hudson River R. R. Co. 6 N. Y. 522; Barney y. Keokuk, 94 U. S. 324 (Bk. 24, L. ed. 224).

If the State of New York has ever conferred | upon the City the right to create such an easement over its own lands the authority can be gathered by implication only. A settled principle of construction forbids a resort to this mode of deriving a title or right. Whoever asserts that the Sovereign has surrendered or impaired its title to its own lands, more especially those over which absolute control in the Sovereign is requisite to the discharge of the

Mayor of Allegheny v. Ohio etc. R. R. Co. 26 Pa. 255, 360; Monongahela Nav. Co. v. Coons, 6 Watts & S. 101, 113; Hagan v. Campbell, 8 Porter, 9, 25: Townsend v. Brown, 4 Zab. 80, 87; Stevens v. Paterson etc. R. R. Co. 34 N. J. Law, 532, 534; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 544, 549 (36 Ü. S. bk. 9, L. ed. 736, 822, 824); Dubuque etc. R. R. Co. v. Litchfield, 23 How. 66, 88 (64 U. S. bk. 16, L. ed. 500, 509); Newton v. Comrs. 100 U. S. 561 (Bk. 25, L. ed. 712); Binghamton Bridge Case, 3 Wall. 51, 75 (70 U. Š. bk. 18, L. ed. 137-143); Mills v. St. Clair Co. 8 How. 579 (49 U. S. bk. 12, L. ed. 1205); Perrine v. Chesapeake Canal Co. 9 How. 177 and Butler v. Pa. 10 How. 414 (50 U. S. bk. 13, L. ed. 94, 477); Richmond etc. R. R. Co. v. Louisa R. R. Co. 13 How. 78 and Bank of Ohio v. Knoop, 16 How. 376 (57 U. S. bk. 14, L. ed. 58, 980); Learenworth etc. R. R. Co. v. U. S. 92 U. S. 741 (Bk. 23, L. ed. 637).

Mr. Frank A. Irish, also for appellants: The City at the time of the grants to Williams and Towle in 1858 and 1859 did not own the strip of land between Thirteenth Avenue and the Harbor Commissioners' bulkhead line of 1857, and could not give title thereto.

It cannot be argued that a grant from the State is implied from the Act of 1858, which repeals the prohibition in the Act of 1855 against making grants, or from the Act of 1857 against solid filling further into the water than the line thereby established.

See People v. N. Y. & Staten Island Ferry Co. 7 Hun, 105; 68 N. Y. 71.

The general power of the City to lay out wharves, or exterior streets, gave it no authority to make a private grant of the strip in question such as the plaintiff claims, and does not in any way strengthen his position.

Various Acts of the Legislature granted this power; and it is understood that the plaintiff expects in some manner to justify his claim by some reference to their authority. See the following Acts:

Dongan Charter, § 2; Colonial Act, Oct. 1, 1691, chap, 18; Montgomerie Charter, § 16; Laws 1787, chap. 61; Laws 1798, chap. 80; Laws 1813, §§ 177-182, 219–236.

The exterior streets or bulkheads, and the piers projecting therefrom, and the slips or basins formed by such piers and streets required or permitted to be built under these Acts, are all public wharves and slips, the same as the public streets of the City. This has been settled by numerous adjudications.

Comrs. of Pilots v. Clark, 33 N. Y. 251, 264, 265; Radway v. Briggs, 37 N. Y. 256, 258; Taylor v. Atlantic Mut. Ins. Co. 37 N. Y. 275, 283, 284; Re N. Y. Cent. etc. R. R. Co. 77 N. Y. 248, 257; Marshall v. Guion, 11 N. Y. 461, 471; Comrs. of Pilots v. Erie R. Co. 5 Robt. 381, 382: Taylor v. Beebe, 3 Robt. 262, 268; People v. Mallory, 46 How. Pr. 281; 2 Thomp. & C. 78; Mayor v. North Shore etc. Ferry Co. 55 How. Pr. 155.

The defendants are not estopped by anything contained in the grants to Williams and Towle

Laws 1870, chap. 383, § 34; 1871, chap. 574,

from showing the plaintiff's want of title to the strip in question, or to the wharfage aris-6. ing therefrom.

The things granted were: (a) the soil, within the limits named; (b) incidentally, the wharfage to arise from a private wharf to be built on this soil.

The grant does not contain any express covenants respecting the title to the premises conveyed, and in this respect it differs from the Astor grants involved in the case of Langdon v. Mayor, 93 N. Y. 129.

Those grants had a general covenant for quiet enjoyment in the usual form. The present grants have no covenant for quiet enjoy

ment.

Where the grant is expressly limited to the present interests of the grantors they will not be estopped or precluded from claiming the premises under a subsequent grant to them.

Rawle, Cov. Title, 3d ed. p. 417, 4th ed. p. 393; Herman, Estoppel, ed. 1886, pp. 784, 785, 826-828.

It is so held in this State in the case of Douglas v. Cruger, 80 N. Y. 15, 19; National Fire Ins. Co. v. McKay, 5 Abb. Pr. N. S. 445, 454; Sparrow v. Kingman, 1 N. Y. 247; Shoemaker v. Johnson, 35 Ind. 33; Gee v. Moore, 14 Cal. 472; Pike v. Galvin, 29 Maine, 183; Lownsdale v. Portland, 1 Oreg. 381, 395; Gibson v. Chouteau, 39 Mo. 536: Rawle, Cov. Title, 3d ed. 404, note 2.

The point in question has been decided in this State in cases involving quitclaim deeds. Jackson v. Wright, 14 Johns. 193; Jackson v. Bradford, 4 Wend. 619; Jackson v. Hubble, 1 Cow. 613, 616; Cramer v. Benton, 64 Barb. 522. And in many cases in other States:

Allen v. Sayward, 5 Maine, 227; Partridge v. Patten, and Sweetser v. Lowell, 33 Maine, 483, 446; Harriman v. Gray, 49 Maine, 537; Robertson v. Wilson, 38 N. H. 48, 52; Doane v. Willcutt, 5 Gray, 328, 333; Comstock v. Smith, 13 Pick. 116; Sydnor v. Palmer, 29 Wis. 226, 247; Read v. Whittemore, 60,Maine, 479; Bruce v. Luke, 9 Kan. 201; Holbrook v. Debo, 99 Ill. 372; Sanford v. Sanford, 135 Mass. 314; Bogy v. Shoab, 13 Mo. 365; Blanchard v. Brooks, 12 Pick. 47, 66; Miller v. Ewing, 6 Cush. 34; Morrison v. Wilson, 30. Cal. 344; Cadiz v. Majors, 33 Cal. 288; Graham v. Graham, 55 Ind. 23; Allen v. Holton, 20 Pick. 458; Frank v. Darst, 14 III. 304.

The plaintiff can make no claim with respect to the strip between Thirteenth Avenue and the bulkhead line, because he is bound by the covenant in the grants to permit it to be taken for the purpose of a street by the defendants, without compensation.

Langdon v. Mayor, 93 N. Y. 129.

The clause referred to is applicable to every part of the premises granted, and refers to streets that "hereafter may be laid out through the premises granted," as well as to those existing.

The department of docks has laid out a new street, River Street, through, across or over, the whole of the strip in question, the bulkhead forming the outer edge of said strip, and also over the land under water in front thereof. The River Street in question has been "laid out and designated" pursuant to authority of law.

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The plans adopted have been approved by the Legislature.

Laws 1884, chap. 517; 1882, chap. 410, § 712. It may perhaps be urged by the plaintiff that an exception cannot technically be made of a street not then existing, and the location of which was undetermined; but without question the court will give it effect as a reservation of the power to lay out streets in the future and to appropriate any part of the premises described for that purpose. It has so construed similar clauses where as exceptions they could not take effect.

Thompson v. Gregory, 4 Johns. 81; Dygert v. Matthews, 11 Wend. 35; Rose v. Bunn, 21 N. Y. 275; French v. Carhart, 1 N. Y. 96; Putnam v. Stewart, 97 N. Y. 411.

The reservation of the right to lay out streets, roads or highways in the future over premises granted, or to appropriate some part of the premises granted, for some purpose or use to arise in the future, has frequently been the subject of adjudication and been recognized in the courts.

French v. Carhart, 1 N. Y. 96; Groat v. Moak, 94 N. Y. 115; Hart v. Connor, 25 Conn. 331; Thruston v. Masterson, 9 Dana, 228; Tuttle v. Walker, 46 Maine, 280; Adams v. Morse, 51 Maine, 497; Van Ohlem's App. 70 Pa. 57; Galloway v. Wilder, 26 Mich. 97.

The plaintiff's claim, under the grants, to the title and right of possession and occupancy for private purposes, of the strip between Thirteenth Avenue and the bulkhead line of 1857 cannot be upheld, because to do so would make Thirteenth Avenue an inside street and thus completely destroy the effect of the Act of 1837, which lays it out as a public exterior street or wharf.

There have been frequent adjudications, to the effect that additions, by accretion, both artificial and natural, to public streets or highways along a river, acquire and partake of the same public nature as such streets or highways.

The courts have only inquired to see whether clear proof existed of an intention to lay out a public street or wharf adjacent to the water highway; and when this has been done the adjudications are absolutely uniform and unbroken that the addition becomes a part of the public street.

People v. Lambier, 5 Denio, 9; Barclay v. Howell, 6 Pet. 499, 512 (31 U. S. bk. 8, L. ed. 478); New Orleans v. U. S. 10 Pet. 662, 717 (35 U. S. bk. 9, L. ed. 573); Wood v. San Francisco, 4 Cal. 190; Godfrey v. Alton, 12 Ill. 29; Balliet v. Commonwealth, 17 Pa. 509; Stetson v. Bangor, 60 Maine, 313; Hoboken Land Co. v. Hoboken, 36 N. J. Law, 540; Jersey City v. Morris Canal Co. 12 N J. Eq. 548; Newark Lime Co. v. Newark, 15 N. J. Eq. 64; Lockwood v. N. Y. & New Haven R. R. Co. 37 Conn. 387; Peck v. Providence Steam Engine Co. 8 R. I. 353; Kennedy v. Jones, 11 Ala. 63.

Looking at the case with reference to the grant of wharfage, etc. accruing at a wharf built on the bulkhead line, the plaintiff has no easement or right over the land under water in front thereof, and no right to prevent the defendants from filling in such land under water

and shutting off access to such wharf by water.

In this respect the case here presented differs from that presented in Langdon v. Mayor, 93 N. Y. 129. The subject of that action was the right to collect the wharfage accruing at the exterior wharf or street which at that point was West Street. The exterior street in question was not only built upon land belonging to the City, but at the time of the grant the City owned the land under water for 200 feet in front of the wharf or street in question.

The land under water in this case belonged to the People of the State of New York, who were not parties to the grant, and were not therefore prohibited from filling it in, or from authorizing the defendants to do so as their agents, for public purposes.

Messrs. Stewart & Boardman, for respondent:

The corporation at the time of the delivery of the Williams and Towle deeds had full power to grant the right to construct a wharf on the line of solid filling known as the Harbor Commissioners' Line, and the right to collect the wharfage accruing therefrom in perpetuity, although the land under water on which the wharf was built, and the land under water exterior thereto, belonged to the State.

Crocker v. Mayor, 21 Blatch. 197; Kingsland v. Mayor, 35 Hun, 458.

The legal effect of the Williams and Towle deeds was to confer upon the grantees, their heirs and assigns, so long as they complied with the covenants and conditions therein contained, the permanent right and easement to collect wharfage, and all the benefits and advantages growing, accruing or arising by or from the wharf erected on the west line of the premises conveyed.

An easement for access to the plaintiff's wharf over the adjacent land under water of the State passed under the Williams and Towle deeds by necessary implication.

Langdon v. Mayor, 93 N. Y. 159.

Assuming, for the sake of the argument, that the Legislature could authorize the destruction of the plaintiff's wharf without compensation, we submit that by the Act of April 18, 1871, no such power was conferred upon the City.

By the construction of the plaintiff's wharf, on the harbor commissioners' line, under the authority of the Legislature and the Williams and Towle deeds, he acquired an absolute and indefeasible right to the wharfage; and it was beyond the power of the Legislature to authorize the Corporation to derogate from its own grant, by shutting off the wharf from the river and putting another wharf in front of it for its own use and profit. Any law purporting to give such authority to the City would be in violation of the State and Federal Constitutions.

State Const. art. 1, § 7; 14th Amend. U. S. Const.; Buccleuch v. Metropolitan Board of Works, 3 L. R. Ex. 306; Moore v. Great So. R. Co. 10 Irish Com. Law Cas. N. S. 46; Beckett v. Midland R. Co. L. R. 3 C. P. Div. 82.

The plaintiff is the owner in fee of the strip of land between his wharf and Thirteenth Ave nue, which avenue has never been widened. The plaintiff's wharf is a private wharf. It is not built upon the outer line of a public street. I

Finch, J., delivered the opinion of the

Court:

Since the rights of the plaintiff depend upon deeds given by the City to his predecessors in 1858 and 1859, and which it is said purported to convey what the corporate grantor did not possess, and rights which remained vested in the State, it will be the most natural route to a conclusion if we start with the inquiry what rights the City possessed, derived from the State, at the instant of those conveyances.

Before 1857 the City owned the upland covered by these grants and which bordered on the river, to a line which is now the west line of Thirteenth Avenue. The process by which it became such owner is not immediately material, since its title and that of its grantees thus far is not here in dispute. The land had a water front, and the City was a riparian proprietor, but with much wider rights than simply attached to it in that character.

The State had granted to the City, by several earlier Acts but notably by the Act of 1813 (2 Rev. Laws, p. 431, § 220, 227, 228; Laws 1806, chap. 126, 1), a general right to build and maintain wharves, piers and slips along the water front wherever the Municipality should choose. This general grant had at the time no limitation upon the original choice of location. It carried with it necessarily, and was surely intended so to do, at least two incidental and subsidiary rights, because inevitably involved in the terms and character of the grant. One of these was to occupy and possess the lands of the State under water, so far as needed for the construction and maintenance of the wharves which the City was at liberty to build. 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.

The Sovereign began by granting to the City belts of its lands along the water front. The Dongan Charter granted the strip between high and low water; the Montgomerie Charter one of 400 feet extending out beyond low water; and which in 1807 was extended northerly to accomodate the growth of the City in that direction. But at least as early as 1801, another process began by giving to the City the grant of a general power to build and maintain wharves. Laws 1801, chap. 129.

In 1806, chap. 126, the right was granted "to cause piers to be sunk in such places and manner as they shall think eligible between the Whitehall Slips and the east side of the Exchange Slips *** 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 shippage or wharfage arising from the same."

The Act of 1813 was broader and seems to have been a substantial reenactment 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 shall deem it expedient."

I have no means at hand of ascertaining precisely at what date the western line of the

City's bulkheads passed the limit of the 400 feet and occupied the land of the State lying under water, although one of the maps used on the argument shows that the line at some points had already been passed when the revision of 1813 was made; but that event might easily occur, since the westerly bounds of the City ran to the west line of the State in the Hudson River. The authority thus given, being commensurate with 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 any title remaining in the State. The wharf when built completely occupied the land under water, and might be built if need be of stone and earth. All use for the floating of vessels disappeared, so far as it occupied the water. The new and substituted use created by the City or its grantees belonged wholly to them, for the entire benefit in the form of shippage, wharfage and cranage was given to them. There was never any restraint put upon this general grant, and the ownership involved where the plans carried the wharves on to the State's land in the stream, except the limitation of exterior lines, beyond which the authority should not go, or that imposed by general plans agreed upon by both parties.

But this general grant of authority to build wharves and take their use and product involved another right. We decided in Langdon v. 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 ly. ing 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 or the erection of any structure in its front, and so by its own act incapacitated itself without the assent of its grantee 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 easement 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 self imposed prohibition, by building in front on its own land under water obstructing docks or walls.

But in 1857 a new agreement was made between the State and the City. I call it such because it was that both in fact and in legal effect. It was preceded by an Act of 1855, chap. 121, a preamble to which recited that it was represented that the harbor had become obstructed by the erection of piers, wharves and bulkheads, and that grants to occupy land under water had been made and "are liable to C. R., V. VII.

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be made" without sufficient knowledge; and then appoints a commission to ascertain all the facts and advise as to a new exterior line and a plan of construction, and in the meantime to prevent further injury forbade any new grants of land under water either by the commissioners of the Land Office or the Common Council. The ultimate result of that commission was the Act of 1857, which moved the wharf or bulkhead line at the locality here in question about eighty feet farther into the stream and located there the exterior wharf line fronting on the water. The City accepted this change. Practically this enactment operated upon the existing restrictions as to exterior lines and gave the City, under its general right of building wharves, authority to locate them upon the land of the State under water at the new line. The same consequences followed as it respected the City's right to the land under water occupied by the new wharves and piers and the new easement of approach in their front. But this change had another effect. There was left, in the execution of the plan agreed upon by the City and the State, open water and land under it in front of the former bulkhead and extending to the new wharf line known as the harbor commissioners' line. Upon that line and extending back from it, the Act of 1857 contemplated the building by the City of a new wharf under its general grant of power. What was to become of that intermediate space? One thing about it was certain. 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, either by an adequate and sufficient bridge or by, a filling with earth. Such filling, if permitted by the State, would necessarily give the new made land to the City. The learned counsel for the appellant himself says: "It may well enough be that a permission by the State to a riparian proprietor to fill up and occupy land under water in front of his premises would be equivalent to the grant of a fee." He insists, however, that no such permission was given. Of course he would not claim that no right of access was involved in the grant, and that the State authorized a wharf in the interest of the commerce of a great seaport, only to cut off all approaches to it from the land. Now the Act of 1857, as we read it, in the light of the situation and of prior legislation, fairly authorized the City to fill up and occupy the open space as a necessary incident to the use of and the access to the new wharf.

Its second section reads: "It shall not be lawful to fill in with earth or other solid material in the waters of said port beyond the bulkhead line or line of solid filling hereby established." The learned counsel for the appellant says, in his clear and terse way: "The purpose of these Acts was simply to prevent filling up beyond a certain line, not to permit it up to such line." But why prohibit at one point if no permission had been given at any? If no general permission had ever been given, why specially prohibit in part? In the appellant's view what was the need of this provision at all? Did anybody suppose that it ever was lawful, in the absence of permission or a grant, to fill up with earth the State's land under the water of a navigable stream? It is clear that the Act of 1857 pro

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