[271 U.S. 403, 404] This is a writ of error to a judgment of the Supreme Court of New York in a suit for mandamus entered by direction of the Court of Appeals of New York, in a case involving the same deeds of water lots between Thirty-Ninth Ninth and Forty-First streets on the east side of North or Hudson River, which have been under consideration in the case just decided. 271 U.S. 364 , 46 S. Ct. 569. The petition of the Applebys, as relators in this case, shows that they have performed all the covenants they had to perform under the deeds; that neither they nor their predecessors in title had ever been required to build or erect piers, wharves, or bulkheads, referred to in the deeds; that under the act of 1871 a department of docks was created, with general supervision and control of the dock property of the city; that it was given authority, with the approval of the sinking fund trustees or the city, to make a plan or plans for the improvement of the harbor, to lay out wharves, and to condemn such vested [271 U.S. 403, 405] property interests of individuals as might interfere with such plans and make compensation therefor; that in June, 1891, the city instituted a condemnation proceeding to acquire the Appleby property, but that is 1914 it discontinued it, and since that has never attempted to acquire title to the premises; that a plan was adopted in 1916 by the dock commission for harbor improvement, with the approval of the sinking fund trustees, for a marginal wharf to be 250 feet wide, to include all of Twelfth avenue, and so much of the Appleby property as lay west of Twelfth avenue, and within a distance of 100 feet westerly therefrom, which would interfere with relators filling their lots; that in December, 1919, the Applebys made application to the commissioner of docks to begin and continue the filling of the two lots of the Applebys within the government bulkhead line as permitted by their deeds; that the commissioner of docks, in answer to this application, wrote as follows:
Thereupon this suit was brought by the Applebys against the dock commissioner to compel the issuing of the necessary permit. This was denied by the Supreme Court in Special Term. The denial was reversed in the Supreme Court, Appellate Division, and that reversal was in turn reversed by the Court of Appeals in an opinion as follows:
The sinking fund ordinance, referred to in the opinion of the Court of Appeals, does not appear in the record. The Court of Appeals, however, took judicial notice of it, and the following statement with respect to it is taken from the opinion of that court in the case of Duryee v. Mayor, 96 N. Y. 477, 485, 486:
Section 15 reads: [271 U.S. 403, 408] 'No grant made by virtue of this ordinance shall authorize the grantee to construct bulkheads or piers or make land in conformity thereto without permission so to do is first had and obtained from the common council, and the grantee shall be bound to make such lands, piers and bulkheads at such times and in such manner as the common council shall direct under penalty of forfeiture of such grant for noncompliance with such terms of the common council.
Messrs. Charles E. Hughes, of New York City, Charles Henry Butler, of Washington, D. C., and Banton Moore, of New York City, for plaintiffs in error.
Messrs. Charles J. Nehrbas and George P. Nicholson, both of New York City, for defendant in error. [271 U.S. 403, 409]
Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court.
The relators base their writ upon the alleged impairment of their contract rights contained in the grant and covenants of their deeds by the plan adopted in 1916 under the act of 1871 (Laws 1871, c. 574) by the dock department, and approved by the sinking fund trustees, the execution of which the dock commissioner is enforcing by a formal refusal to grant permission as requested by the relators to fill up their lots. The authority of the dock commissioner and the sinking fund trustees under the act of 1871 is such as to make the plan and the refusal equivalent to a statute of the state, and, assuming that it is in conflict with the grant and covenants of relators' deeds, it is a law of the state impairing a contract obligation, under section 10, article 1, of the federal Constitution. New Orleans Waterworks Co. v. Louisiana Sugar Refining Co., 125 U.S. 18 , 8 S. Ct. 741; Williams v. Bruffy, 96 U.S. 176 , 183; Walla Walla City v. Walla Walla Water Works Co., 172 U.S. 1 , 19 S. Ct. 77; Mercantile Trust & Deposit Co. v. Columbus, 203 U.S. 311 , 27 S. Ct. 83; Zucht v. King., 260 U.S. 174 , 43 S. Ct. 24. We have jurisdiction of the writ of error under section 237 of the Judicial Code (Comp. St. 1214).
The question in this case then is whether the deeds before us, construed in connection with the sinking fund ordinance of 1844, gave to the plaintiffs the right to fill in the lots without the consent of the city. Each deed described the land conveyed as follows:
The grants were in fee simple. The grantees respectively covenanted that they would, upon the request of the city, build bulkheads, wharves, streets, and avenues to form part of Twelfth and Thirteenth avenues, and Thirty-Ninth, Fortieth, an Forty-First streets, which were within the general description of the premises conveyed. These were excepted therefrom for public streets. The grantees agreed to pay the taxes on the lots lying between the streets. There was a covenant that they would not build the wharves, bulkheads, avenues, or streets previously mentioned until permission had been given by the city. The city covenanted that the grantees might have wharfage on the westerly side of the granted premises fronting on the Hudson river, excepting at the westerly ends of the cross streets, which was reserved for the city.
In a deed of a similar water lot on the east side of the city, with exactly the same covenants, the question arose in the case of Duryea v. Mayor, etc., 62 N. Y. 592, 596, whether the covenants with respect to filling the streets applied to the filling of the water lots between the streets, and it was held that they did not. The court said, at page 596:
In the same case reported in 96 N. Y. 477, the sinking fund ordinance, not referred to in the first decision, was pressed upon the court to change its conclusion in the first hearing and to hold that the city had the absolute right, by reason of the ordinance, to forbid the filling of the land conveyed. As to that the court said:
It referred to the conduct of the city through all its departments for a period of upwards of 20 years in dealing with the ordinance and deeds like this as having affixed the interpretation claimed by the relators as the true intent and meaning of both. It said further:
[271 U.S. 403, 412] 'The only lands expressly provided to be made by the ordinance are those constituting the piers, wharves, streets, and avenues, and since it is unnecessary in order to give the clause in question an office to perform, to extend it to lands outside of such streets, and to create a right unconnected with those clearly intended to be granted, it is in accordance with settled rules of interpretation to limit the effect of general language to the accomplishment of the object undoubtedly intended. ... If it be held that the words 'make land in conformity thereto,' as used in the ordinance, apply only to the lands necessary to form the piers, bulkheads, and streets, the defendant will not only be protected in all of the rights intended to be secured to it, but the grantee will receive the benefits of his purchase and the deed will be free from objection on account of the apparent repugnancy existing between the interest actually conveyed and those apparently reserved.
After giving this construction to the deed and ordinance, the court then examined the evidence, and found that the common council had by its conduct consented to the filling in of the lots, and because, in its summing up, the court referred to the latter ground, it is insisted that its chief discussion and conclusion upon the construction of the ordinance and deed are not to be treated as authority. It should be noted that the construction of the deed by the court in the Duryea Case upon this point was referred to approvingly as authority in Mayor v. Law, 125 N. Y. 380, 391, 26 N. E. 471, 472, where, citing the Duryea Case, the court used this language with respect to a similar covenant:
The Court of Appeals in the present case disposed of the question we are discussing as follows:
We cannot agree with this. We think the reasons advanced by that court in the second Duryea Case to sustain the opposite construction of the deed and ordinance are much more persuasive. It has added force when it appears from the opinion in the Duryea Case and the conclusion of the Appellate Division in this case that such construction of such deeds and the ordinance has become a rule of property for more than 50 years. It is not reasonable to suppose that the grantees would pay $12,000 in 1852 and 1853, and leave to the city authorities the absolute right completely to nullify the chief consideration for seeking this property in making dry land, or that the parties then took that view of the transaction. In addition to the down payment, the grantees or their successors have paid the taxes assessed by the city for 75 years, which have evidently amounted to much more than $70,000. It does not seem fair to us, after these taxes have been paid for 60 years, in the confidence justified by the decision of the highest state court, that there was the full right to fill in at the pleasure of the grantees and without the consent of the city, now to hold that all this expenditure may go for naught at the pleasure of the city.
If the sinking fund ordinance is to be applied at all to the filling in of the land in the limits within the deeds, it should in our judgment be regarded as a mere police [271 U.S. 403, 414] requirement of a permit incident to the filling and to supervising its execution by regulation as to time and method, so that it should not disturb the public order. Had the refusal of the commissioner of docks, charged with the police regulation as to the docks, taken this form, an application for mandamus might well have been denied, because only an effort to control the police discretion of the public authorities; but the refusal to permit the filling to begin is not put on any such ground. It is denied because the city has a different plan, which does not permit the filling at all. This is an assertion of the right of the city absolutely to prevent the filling which is an impairment of the obligation of the contract, made by the city with these plaintiffs, in violation of the Constitution of the United States.
The judgment of the Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.