Statement of case.

means of approach. This extension was built after the adoption by the city of the plan of harbor improvements provided for by said act of 1871. Held, that the value of the use of said platform could not properly be taken into consideration as an incident of the wharf-right as, first, the permission originally given was in contravention of existing laws, and so was unlawful and void (Chap. 80, Laws of 1798; chap. 129, Laws of 1801; chap. 378, Laws of 1875); second, if lawful, it was merely a license, revocable in its nature, and the value of its use was a pure gratuity while the permission lasted; third, the extension was forbidden by the act of 1871, because inconsistent with the plan adopted. Also, held, that plaintiff acquired no right to the use of the platforms or to claim damages for their destruction under the act of 1875 (Chap. 249, Laws of 1875), authorizing the department of docks to grant permits for the maintenance and construction of sheds, and legalizing existing structures upon piers and bulk-heads; as the act in no respect authorized platforms and sheds beyond the bulk-head line, and the permits were revocable in their nature.

Also, held, that when the city, acting under the law of 1871, adopted a plan which involved the termination of all private ownership of docks, and wharves and in the progress of the improvement directed the removal of the platforms and shed, it revoked plaintiff's license; that such action on the part of the city operated to destroy plaintiff's wharf-right, and for that, and also the right of preferential use by steamship lines attached to his bulk-head by statute (Chap. 261, Laws of 1858), he was entitled to compensation; but not for the revocation of the license or deprivation of the use of the platforms and shed.

(Argued June 14, 1888; decided October 26, 1888.)

APPEAL from order of General Term of the Supreme Court in the first judicial department, made January 19, 1887, which reversed a judgment in favor of plaintiff, entered upon the report of a referee and ordered a new trial. (Reported below, 45 Hun, 198).

This action was originally brought by plaintiff, as sole surviving trustee under the will of Daniel C. Kingsland, deceased, to restrain defendants from further filling in and to require them to remove a bulk-head erected and solid filling deposited by them in front of plaintiff's bulk-head on the Hudson or North river, and to recover damages. By agreement of the parties the action was considered and tried as one to recover compensation for the value of plaintiff's rights.

Plaintiff claimed under two conveyances from the city known as "water grants," conveying lots under water, together about

Statement of case.

104 feet wide on the westerly side. The grants contained covenants on the part of the grantees to build a good and sufficient wharf or street seventy feet wide, to be called West street, in front of and contiguous to the westerly end of the premises granted, the same to remain a public wharf or street. Each grant contained a covenant on the part of the grantor that the grantee on fulfilling and keeping the covenants on his part "shall and lawfully may from time to time, and at all times, forever hereafter fully have, use and enjoy all manner of wharfage, cranage, advantages and emoluments growing or accruing by or from said wharf or street." Subsequently the wharf or street was constructed as required by the grant.

* *

Under the act (Chap. 383, Laws of 1870, as amended by chap. 574, Laws of 1871), and in carrying out the plan adopted by the department of docks a new bulk-head line was erected on a line parallel with the west line of West street, distant about 180 feet westerly therefrom, and the intervening space was

filled in.

The further material facts are stated in the opinion.

William W. MacFarland for appellant. Where property is condemned in the exercise of the sovereign power of eminent domain for what the law recognizes as a public use, the owner is entitled to a full measure of compensation. The rule by which that compensation is determined is market-value, whenever that rule is available. (In re F. St., 19 Wend. 649; In re W. & A. St., 19 id. 690; Troy & Boston R. R. Co. v. Lee, 13 Barb. 169; In re W. G. L. & W. Co., 27 Hun, 116: Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423; In re N. Y. & W. S. R. R. Co., 29 Hun, 611; B. & R. Mill Co. v. Newman, 11 Pick. 467; Sedgwick on Dam. [7th ed.] vol. 2, 569, note; 2 Montesquieu's Spirit of Laws, 174.) The defendants, by their omission to call any witnesses to controvert or even mitigate the testimony of the experts that the property is worth at least the amount found by the referee, admitted its truth. (Lawson's Presumptive Ev. 120; 1 Greenleaf's Ev. § 37.) There is no rule of law which in this particular case denies to

Statement of case.

the plaintiff the market-value of his property and prescribes another and arbitrary measure of compensation. (Langdon Case, 93 N. Y. 137; Act of 1871, § 99; Williams Case, 105 N. Y. 437; Smith v. Rochester, 92 id. 463.) The court below erred in supposing that the market-value proved had any relation to profits or emoluments that might arise out of extensions beyond the bulk-head line sheds, or the power to appropriate the property to exclusive use. (In re N. Y. & W. S. R. R. Co., 29 Hun, 610.) No right or title can take root in a forcible entry. (Mackeldy's Roman Law, 166, § 200; id. 199, § 226; id. 208, § 254.)

James C. Carter and Frank A. Irish for respondents. Under the circumstances, this court will sanction a judgment for damages, based upon and including the permanent value of the plaintiff's property rights. (Lahr v. Met. El. R. R. Co., 104 N. Y. 268, 293, 294; Henderson v. N. Y. C. R. R. Co., 78 id. 423; Langdon v. Mayor, etc., 28 Hun, 159; 93 N. Y. 122, 179.) Plaintiff, having elected to sue for the value, cannot also hold the defendants to any measure or rule of damages applicable to a trespasser. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98, 123.) Upon condemnation proceedings had by the defendants, under the act of 1871, the plaintiff would not have been entitled to compensation, based upon the continued maintenance of the shedded platform on the city's land, and the exclusive use resulting therefrom, or upon the chance or possibility of maintaining the same or of erecting other shedded platforms. (Ex parte Miller, 2 Hill, 418; Fox v. Cincinnati, 104 U. S. 783; Hubbard v. City of Toledo, 21 Ohio St. 379; Erkenbrecher v. Cincinnati, 2 Cin. Sup. Ct. R. 412; Fishback v. Woodruff, 54 Ind. 102.) It is not open to plaintiff to inquire into the reason why the board of docks revoked the license to maintain the shedded platform, or to call them to account for doing so. Having expressly reserved the power to revoke this license, they are entitled to do so, even arbitrarily if they choose. The plaintiff's rights are completely subordinate to this power or condition reserved

Statement of case.

in the license itself. (Dermott v. State, 99 N. Y. 101; Ex parte Miller, 2 Hill, 418; Mattoon v. Monroe, 21 Hun, 74, 79; Burbank v. Fay, 5 Lans. 397, 401; 65 N. Y. 57.) The license in question has been actually and sufficiently revoked. It did not require an express notice or resolution to revoke it. (Ex parte Miller, 2 Hill, 418.) The shed and platform in question were originally prohibited by section 6, chapter 574 of the Laws of 1871. (People v. Mallory, 46 How. 281; Comrs. of Pilots v. Clark, 33 N. Y. 251.) The license to build them, even if it were valid when granted, must, from its form, be considered to have been revocable in its nature. (Haldeman v. Penn. R. R. Co., 50 Penn. St. 425, 440; State Reservation Case, 16 Abb. N. C. 183, note.) In deciding what should be awarded to plaintiff as just compensation for his property taken by the public, neither the purpose to which it was then applied nor his intention in relation to its future enjoyment is to be considered; the proper inquiry is, what is the value of the property for the most advantageous uses to which it may be applied? (In re F. St., 17 Wend. 651, 670; In re N. Y. L. & W. R. R. Co., 33 Hun, 644; 27 id. 116; Trustees of College Point v. Dennett, 5 T. & C. 217; Boom Co. v. Patterson, 98 U. S. 407; Central Pacific R. R. Co. v. Pearson, 35 Cal. 247; Eddings v. Seabrook, 12 Rich. Law [S. C.] 504, 510; Burt v. Wigglesworth, 117 Mass. 302; S. W. & S. Railway Co. v. Abell, 18 Mo. App. 632; Union, etc., Co. v. Moore, 18 Ind. 458; Moulton v. Newburyport Water-works, 137 Mass. 163, 167.) In all cases involving the exercise of the right of eminent. domain, where the question has arisen, the courts have held that the use of the property of the public, enjoyed by its license or sufferance, although entitled to be protected as against every one except the state, gives rise to no claim against the state or its grantee when the state desires to resume its use for public purposes. (People ex rel. Loomis v. Canal Apprs., 33 N. Y. 461; Crill v. City of Rome, 47 How. 398; People v. Tibbits, 19 N. Y. 523; 16 Abb. N. C. 159; Patten v. N. Y. El. R. R. Co., 3 id. 306, 325, 344; Hatch v. C. & I. R. R.

Opinion of the Court, per FINCH, J.

Co., 18 Ohio St. 92.) This suit having been instituted as a method of ascertaining and recovering the value of the property rights in the same manner as it would be ascertained and paid for in a proceeding instituted for the condemnation of those rights to public use, the value must, therefore, be ascertained in like manner as it would be in a proceeding of the latter character; otherwise the action cannot be maintained at all. (Uline v. N. Y. C. R. R. Co., 101 N. Y. 98.) It is incompetent for the court to give to the action the shape in which it can alone be maintained and which both parties wish it to assume. An injunction will not be awarded if the value correctly ascertained is paid, and it may be ordered that upon such payment the incorporeal right be conveyed. (Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423; Lahr v. Met. El. R. R. Co., 104 id. 268, 293.) A tenant at will (which is what the plaintiff was), may recover substantial damages against the man who wrongfully ousts him. (Ex parte Miller, 2 Hill, 418.) Plaintiff's right to maintain a platform and shed having ceased it could no longer be the subject of compensation. (Dermott v. State, 99 N. Y. 101, 108, 109.) The referee in making his award erred in holding that the value is not to be determined by a reference to the revenue which the owner might derive from the bulk-head when used for the sole purpose mentioned in the grant, but by reference to the revenue which he might derive from it when it was viewed as capable of having the shedding privilege attached to it. (Fox v. Cincinnati, 104 U. S. 783; Hubbard v. City of Toledo, 21 Ohio St. 379; Erkenbrecher v. Cincinnati, 2 Cinn. Sup. Ct. 412; Mattoon v. Monroe, 21 Hun, 74, 79; Burbank v. Fay, 5 Lans. 397, 401; S. C., 65 N. Y. 57.)

FINCH, J. 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 of docks owned and controlled by the municipality, involved the necessity of compensation to such owners for the property rights thus taken away. (Langdon v. Mayor,