and 103 New York State Reporter

tified to special study, experiments, and practical experience with reference to the subject about which he was interrogated. We think he showed himself to be an expert, so as to enable him to testify as such with reference to the questions put to him, and we find no reversible error in the ruling of the trial court as to his evidence.

For the reasons herein suggested, we conclude that the judgment and order appealed from should be affirmed, with costs. So ordered. All concur, except MCLENNAN, J., who dissents.

(59 App. Div. 83.)

INDIA WHARF BREWING CO. v. BROOKLYN WHARF & WARE

HOUSE CO.

(Supreme Court, Appellate Division, Second Department. March 8, 1901.)

1. WHARVES-DEEDS CONVEYING ADJACENT PROPERTY-CONSTRUCTION-WHARF NOT PUBLIC THOROUGHFARE-WHARF NOT INCLUDED.

Plaintiff owned certain property adjacent to a wharf on the East river, known as "India Wharf." The deed conveying the land to plaintiff's grantor described the premises as being "on the easterly side of India wharf," and known as certain lot numbers on a map therein referred to, and that the premises were to be held subject to "the right of way, in common with others," over the span between the described lots and the outside line of the dock. The grantee was given the right to lay railways from each of the lots, when stores were built thereon, to the outside line of the dock, and the grantors "reserved to themselves the right to all dockage, as well as the entire control

of all their pier, docks," etc., and agreed to keep the same in good condition at their own expense. The India wharf was constructed under legislative authority, but not until after this conveyance to plaintiff's grantor was executed. Held that, the wharf not being a public thoroughfare, and the public having no right over the same, the deed did not convey the wharf, as the intent to exclude the same clearly appeared; and hence plaintiff was not entitled to enjoin the construction of a pier out from the wharf directly in front of its property.

2. SAME-EASEMENT OVER WHARF-BY PRESCRIPTION.

Plaintiff owned certain property adjacent to a wharf on the East river. The deed conveying the land to plaintiff's grantor from the owner of the dock gave a right in common with others over the wharf, and to lay railways from his property, when stores were built on the same, to the outer side of the wharf. For a number of years plaintiff used the wharf in loading and unloading vessels. Held, that plaintiff had not acquired an easement over the wharf, adverse to defendant's title, and hence could not restrain the construction of an abutting pier directly in front of its property, where the same was necessary for the business of the basin, and did not interfere with the rights acquired by plaintiff by its decd.

Appeal from special term, Kings county.

Bill by the India Wharf Brewing Company against the Brooklyn Wharf & Warehouse Company to restrain the construction of a pier. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

The following is a diagram showing the location of the property involved:

and 103 New York State Reporter

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, and SEWELL, JJ.

John M. Bowers (Latham G. Reed, on the brief), for appellant.
Henry Yonge, for respondent.

HIRSCHBERG, J. The plaintiff has secured a judgment perpetually enjoining the defendant from constructing an extension to pier 35 in the Atlantic Basin, in the borough of Brooklyn, which extension is designed to connect that pier with the shore at the India wharf. This judgment is based on a decision finding that on or about the 31st day of October, 1899, the defendant entered upon the slip or water way in the Atlantic Basin in front of and abutting the property of the plaintiff described in the complaint, and partially constructed a pier in said slip or water way from the India wharf to pier 35, as shown on a diagram annexed to the decision, and intends, unless restrained by order of the court, to continue and complete the construction of such pier; that such entry by the defendant, and partial construction of the pier, is unlawful and illegal; and that the same was done without the consent and against the will of the plaintiff, and in violation of the rights of the plaintiff in the slip or water way..

It appears, by the diagram referred to and other maps and diagrams in evidence, that the Atlantic Basin is formed by two piers, known, respectively, as the "North Pier" and the "South Pier," running easterly and westerly, and which shut out the waters of the harbor, excepting at the opening between the piers. Within the basin so formed, and surrounding it, are India wharf, at the easterly or shore end of the North pier and running northerly and southerly, Clinton wharf, at the westerly or shore end of the South pier and running northerly and southerly, and Commercial wharf, formerly Conover street, running easterly and westerly and connecting the two other wharves. The plaintiff's property abuts the India wharf. Two parallel piers in the basin have been constructed,-one known as "No. 34," which commences at the wharf in front of, but at the extreme northerly end of, plaintiff's property, and juts out a considerable distance in the water, and the other known as "No. 35," which does not commence at the wharf, but some 150 feet distant, opposite the center of plaintiff's property, and thence extending into the basin, and connected with pier No. 34 at the easterly end of pier No. 34, being the end nearest the India wharf, and, as I have said, 150 feet from it. The improvement contemplated by the defendant, now enjoined, consists in the removal of this connecting band and the continuance of pier 35 through the water of the basin to the India wharf, so that, when completed, there will be two disconnected parallel piers running out from India wharf, about 130 feet apart, instead of, as now, so connected as to leave the water open in front of the wharf, between the wharf and what I have called the connecting band. The practical difference effected by the proposed change will be that, whereas there is now a wharf over 400 feet in width in front of the plaintiff's property, alongside of which boats can lie, this will be broken in two by the pier extension, leaving about 200 feet of wharf

front on one side of pier 35 and about 130 feet on the other. The difference is of material value to the plaintiff, and fully justifies the interference of the court, if its accomplishment involves the infringement of plaintiff's rights.

The India wharf was formerly 50 feet in depth,-that is, from its easterly side to the water; but this has been reduced by convention and conveyance to 40 feet. In the complaint the plaintiff alleges title in fee to its property by descriptions which locate it easterly of the easterly line of India wharf, and as bounded by and along such easterly line; but it alleges, in addition, that it is, and has been for many years past, the owner in fee and in possession of the India wharf itself, and of the abutting lands under water. In addition to

the fee so claimed, the plaintiff claims in the complaint to be seized and possessed of a "dominant easement, pertinent to the said premises," to have the slip and wharf kept open and used, for the purpose of a water way, for the approach, dispatch, loading, and unloading of vessels, with the right of unimpeded passage through the basin and unimpeded access to the premises. The title of both plaintiff and defendant is derived from a common grantor, the Atlantic Dock Company, incorporated by chapter 215, Laws 1840. The plaintiff's property was conveyed by that company to Nathaniel Griswold in two deeds; one dated July 30, 1842, and the other November 24, 1842. The first deed covered all the lots adjoining, and easterly of, the India wharf, the entire front from Conover street, to the North pier. The second deed covered adjoining lots lying easterly of those first conveyed. The first conveyance is the only one directly bearing on the rights or claims under consideration. It describes the property as: "All and singular these certain twenty-five lots, pieces, or parcels of ground situate, lying, and being in the Sixth ward of the city of Brooklyn, being respectively adjoining each other on the easterly side of India wharf, of the property of the parties of the first part, and known and distinguished as lots numbers * 容 * on a certain map of the said parties of the first part, inscribed Map of Property in the 6th Ward of the City of Brooklyn, Port of New York, belonging to the Atlantic Dock Company, surveyed September, 1841, by Willard Day, City Surveyor,' which said twenty-five lots compose all the lots lying on the easterly side of the said India wharf; and for the precise locality of each of the said lots reference is hereby made to the said map, which map is filed in the office of the clerk of the county of Kings."

The deed contains the following habendum:

"To have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit, and behoof, forever, subject, however, to the right of way in common with others over the streets or space between the said lots and the outside line or face of the dock on the Basin side of said lots, which street or space is fifty feet wide as laid down on their said map; and the grant and conveyance hereby made are made upon the express condition that when the said party of the second part, his heirs, executors, administrators, and assigns, shall erect and build a store or warehouse on any one or more of said lots, that the first or ground floor of the same shall be raised or carried up to five feet above ordinary level of high-water mark or line, and that the owner or owners of any such store or warehouse, when erected, shall have the right of laying down railways from each of the said lots to the outside line of said dock in such manner as will admit carts and carriages to pass over them with convenience and so as not to obstruct the passageway."

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Then follow minute requirements as to the size, height, number of stories, height of respective stories, character, design, strength, and quality of material of the stores and warehouses to be erected, followed by this clause:

"The owner or owners of any such store or warehouse, when erected, shall have the right of laying down railways from each the said pier lots to the outside line of said pier or dock in such manner as will admit carts and carriages to pass over them with convenience, and so as not to obstruct the passageway. When any such store or warehouse shall have been built as aforesaid on any of said lots, the same shall not be used or occupied by any owner or occupant for the purpose of carrying on any distillery, brewery, oil factory, glass factory, fur factory, gas works, slaughter house, smith shop, carpenter or machine shops, foundry, or any other manufactory or branch of business which shall be deemed a nuisance. The said parties of the first part reserve to themselves, their successors or assigns, the right to all dockage or wharfage, as well as the entire control, interest, and income of all their piers, docks, bulkheads, and basin, and hereby obligate and bind themselves, their successors or assigns, to keep the said piers, docks, and bulkheads in repair at their own proper cost and expense, and to grade the said lots up to two feet above ordinary high-water mark or line."

On the 29th day of December, 1847, the Atlantic Dock Company conveyed to the executors of Griswold, by deed containing covenants of title in the grantor, the strip about 10 feet in width across and along the easterly side of India wharf, thus reducing the wharf to its present depth or width as a "street or space" of 40 feet. On August 23, 1889, said Atlantic Dock Company released the Indian naif Storage Company, predecessor in interest and title of the plaintiff, from the restriction as to the erection and maintenance of a brewery, under terms and conditions not material to the inquiry. In this release the lots now belonging to the plaintiff are referred to as "certain lots of land, fronting on India wharf, at the Atlantic Basin, in the city of Brooklyn,” and the strip referred to as "a certain strip or parcel of land ten feet in width of and from said India wharf in front of and adjoining the said lots." The plaintiff put in evidence an indenture or agreement, made on the 1st day of June, 1848, by the Atlantic Dock Company, as party of the first part, with one Conklin Brush, for his benefit and that of the others to whom the company had sold lots fronting on the Atlantic Basin, and all others to whom it might thereafter sell lots, to the effect:

"That the rates of wharfage and dockage to be charged by the said parties of the first part for the use of said basin and surrounding piers and wharves shall not exceed the customary rates of dockage and wharfage charged in New York and Brooklyn, and that they will excavate said basin and keep the said piers and wharves in good repair as hereinafter mentioned; * it being expressly understood that the said parties of the first part reserve the full right and authority at all times to prevent merchandise and other articles from remaining an unreasonable time on said wharves after being landed, or from unnecessarily obstructing the free passage over and along the same, and, further, that the said parties of the first part shall and will, within four years from the date of these presents, excavate to the depth of low water by 16 feet on Commercial wharf, of 20 feet on the South pier, and of 25 feet on the North pier, with a gradual ascent from said pier to said Commercial wharf, the whole of said basin south of a line drawn parallel with India wharf, and distant 300 feet southwardly therefrom, and that they will also at all times maintain said depth and keep said basin and surrounding piers and wharves in good repair."