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AI BASY, ed in April, 1798, to the legislature, for an act to authorize

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them to runítreets or wharves, of 70 feet width, in front of

corr:", the water-lots already granted. This, by a hw of thatmilk Richard Scott and year, (re-enacted on the 3d of April, 1801,) the legi.

ture was pleased to grant; and by the fame act, the promi

etors of lots, on the front of which, the streets or wharves

might run, were to fill them up, and make piers, according to
the directions of the corporation. Onnon-compliance,theco-
poration were to be at liberty foto do, and receive the wharf.
age to their own use. It was also farther provided, that the

corporation might grant to fuch proprietors in fee, a cem

mon interest in fuch piers, in proportion to the breadth of
their respective lots, under such restrictions, and within
fuch limits as the Mayor &c. might deem just and proper:
In pursuance of the authority, conferred by thisad, the
corporation laid out a street, called fouth flreet, in front of
the lots they had granted, joining the East River, and on the
first day of june 1801, made a bye-law, or ordinance, by
which they ordered the respective owners of lots, fronting
and bounded on South street, from the Wall fliest flip to
the Fly-Market flip, to make a pier on the northeatfidect
Wall street, and complete it according to the directionsher-
in given, before the first day of November 1802; on doing
which, the corporation would grant the piers to the owners
of the faid lots, “referving in the faid grants, the exclusive
“right in the corporation of this city, of wharfage andfil.
“age, on the fide of each pier, adjoining a public flip, and
“that the faid piers be, in all refpects, confidered as 't
“streets or highways, and maintained and kept in repain''
“ the grantees, their heirs and affigns.” . -
Previous to the pasfing the act of April, 1798, the corpo.
ration had laid out the plan of South street, and had grant.
ed to the proprietors of lots, bounded by the East River,the
vacant water-lots between them and South street.
Among the grants thus made, there was one the 10th ti
May, 1797, to John Murray, under whom the defendant
claimed. - - - , - - -
By this grant, Murray was to make a wharf or tree, ci
70 feet in width, along the whole front of the lot, gmed

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to him, (which was to be South street) and another of at: £

least 25 feet, along the whole weft fide of the fame lot, and

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of the street of 70 feet. The fame to be and remain public car." streets; in confideration of upholding, maintaining, and Richard Scott

keeping of which, in good and fufficient repair, he was to
have all wharfage &c. accruing or arising, by or from the
fame, fronting the East River, or by or from any part there-
of. | -
: Murray accordingly built the wharves and treets, fpecifi-
edin the grant, and also, under the direction of the corpora-
tion, a pier running in front of South street, into the East
River, the fouth west fides of which, and of the wharves
and streets, he had erected, are bounded by, and in a line
with Wall street flip, which runs in front of Wall street,
and the wharf of 25 feet, built along the fouthwest fides of
South street, and the lot granted by the deed of 10th May,
1797, to John Murray. This pier, so erected, was not only

opposite to the water-lots mentioned in the indenture of

1797, but ran about five feet more to the fouth west, upon lands within the bounds of the city, as expressed in its charter, and opposite to the wharf, covenanted in the grant, to be built by Murray, which land however, was not granted to the corporation by their charter.

The pier, from the time of its being made, had been up

held by Murray, and no grant of a common interest in it had been made by the Mayor, Aldermen and Commonalty, agreeable to the actof the Legislature already recited. "The fole question was, whether the defendant, to whom by mesne affignments the rights of Murray had been conveyed, was entitled to the wharfage on the south-west fide of the pier, which ran in front of the five feet of the city lands? If he was, then a non-fuit to be entered. 2 Riggs for the plaintiffs. The infide of all public flips have been constantly referved in the Corporation grants for the fake of convenience to the city, that its fupply by marketboats, &c. might not be impeded. They are under the comtroul of the plaintiffs, and have, in many instances, as in the present, been widened that they might be the more effectually cleansed by the tide. For this purpose, in the ač of '98,

ALB'ssy, the piers (which form the flips) are under the direáind

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the Corporation. By this ač a grant to the phintiffs of the

car." land, on which the new piers, in frontof South-street, were Richard Scott to be erected, must neceffarily be implied, for they area:

thorised to grant a common interest in them, to the prome.
tors of lots in front of which South-street ran, according
to the respective widths of the fame, underfuch retrictions
and regulations as the Corporation may think proper. They
could not grant what they had not. Befides this implication
is acknowledged by John Murray. He, therefore, and those
under him, are eftopped from controverting it. He builtun-
der an ordinance exercifing the right of an implied grant,by
making a reservation, in the true spirit of all the former
grants of the Corporation, and for the fame beneficial Wu-
poses. It may further be observed that, by running a fine
from the extreme fouth-westerly point of John Murrayskt,
it will not strike the place for wharfage at which the plin.
tiffs infift on a right.
Troup and Hamilton contra. The act gave no beneficial
interest to the Corporation. They were fimply muters, or
rather attornies to grant to others a right in confidentions
a fervice or duty performed. This duty was the ereding"
pier and created a confideration for the grant. Theid:
the reserving a portion of the emoluments was, fo firik'
and void; for a trustee cannot take to himself, and withid
from his cylui que truff, part of the fubject of the trut
Allowing then an interest to have pailed by implication, it
was a trust. Then, although the act authorizes themtog"
under fuch restrictions and within fuch limits as they my
think proper, still this is no more than a power to reguh"
the mode and place of enjoyment; for restriction, can never
signify a right of acquifition. To shew how completely the
building of the pier was the confideration for the wharf's
who ever did erect was to have the profits; and, on this?"
ciple, when made by the Corporation, after negled of the
proprietor of the lot, they were, on performing what hew"
to have done, to step into his place, with a full title town:
age. We admit we have no right to wharfage in the flip"
cause the wharf there, was on foil the property of the Col.

poration, and they might, in that instance, reserve. The pre- A BANY, fent reservation is a manifest attempt towards a breach of *::: trust, at the expenfe of the object for whom it was created. co", The action is for money had and received, the court, there. Richard Scott. fore, will recognife all equitable rights which we may have." We cannot be estopped by the ordinance for we are not parties to it by fealing and figning. Riggs and Harrison in reply. This is a cause in which the public convenience of the city of New-York is deeply interested; therefore, the act and grants must be liberally construed, with that object always in view. For public benefit. was the cause of the refervation of wharfage and flipage, on the infide of public flips, originally made. This would be entirely defeated by the defendant's claim, for if he has a right to wharfage on the fide of the pier next to the public flip, he will have a right to lay a veffel outfide of that, fast- i ened to the pier, and another outfide of that, fo as to obfruct, if not entirely fill up the access to the public flip. | This shews the neceflity of implying by the fict a grant to the Corporation of the foil under-water beyond the 400 feet mentioned in their charter. The construction put on the words “restrictions,” &c. cannot be correct, for the mode and place of enjoying wharfage rights is, by an express distinct law, under the regulation of the harbour-maiter. In the rights, as expreffed by the ordinance, there is an ample confideration for building the piers, for the perfons thus doing fo, have the emoluments arising from the fides adjoining to private property; as in the prefent cafe, thofe on the north-east fide within the bason. This is further proved by the fense of the Legislature, expreffed in an additional claufe when the act of 1798 was re-enacted; previous to which time, the proprietors of lots were entitled only to a community of wharfage in front of their properties; but, by the clause alluded to, the Corporation were impowered to grant, under the restrictions we contend for, that community of interest mentioned in the law. The counsel feem to forget that a man may be efforted by his actions as well as by his deed. Having no original in

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Percuriam, delivered by Livington, J. This is an idion

Rich" Scott for money had and received by the defendant, as whirige

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for veffels lying in what the plaintiffs call a flip, adjaratto, that part of a pier which stands opposite Murray's whiti. From the form of action the plaintiffs must hew afik in them to demand this money. It is, therefore, unneceffin to enquire whether it belongs to the defendant or not. The Corporation can have no fuch right, in as much as the land, on which the pier is erected, was never granted to them, hor was the foil under the water where the veffel lay, for which this wharfage was paid. No implied grant is cominedinthe aćt of the legislature. The corporation are only to glutas attornies of the public, in cafe piers are funk. That this is to be done under certain restrictions and regulations maus, not that they shall have a right to referve the whitige to themselves, which is to be theirs only in case of deful in the owners of the lots in finking piers, but that they are to regulate in what manner the right to wharfage hillbee'. ed. Nor does the refolve of the Common Council of the 1\of June, 1801, make a difference.The reservation thereincontin: ed, if in an indenture, might have been binding on the defend. ant; but,the corporation having exceeded theirpowersium.

ing this refervation in a resolve of this kind, it cannot behin'..

ing on him. They had no right, in this way, to imporary terms they pleased, or they might arbitrarily have deprivate owners of lots of the right, which the Legislature intended they should have, of finking these piers. It cannot, theidon, be regarded in the light of a contract; for the defendanthal a right to make these piers and bridges without thereby inc. tioning any terms which might thus be imposed on him. Nor can it be faid that the Corporation, not having executed the powers vested in them by the act, the individual has no

right to receive the wharfage. This would be to take adu. tage of their own wrong and neglect; nor does it follow, ''

as has already been observed, that the money belongs to:

Corporation, if it be admitted that the defendant was wrw, .

in taking it.

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