[Vol. 17. Supreme Court, June, 1896. nation by a State against nonresidents, leaving the latter substantially in all other respects to the full exercise of its sovereign power. I think, therefore, there is no constitutional objection in the way of the enactment and enforcement of the section of the Code under examination in its application to persons in the same situation as the relator. If he has an actual concrete residence within the county for a sufficient length of time to give it a substantial character, I see no reason why he may not be considered as of the vicinage within the meaning of that term as applied to a juror at common law; and it seems to me to be quite within the power of the legislature to determine that a substantial, actual residence within the county for a period of time which it may fix, shall constitute a residence qualifying such person for the performance of jury duty. The only case which I have been able to find that may be considered as at all in point is one which was decided in the Supreme Court of the District of Columbia. United States v. Nardello, 4 Mackay, 503. In that case the right of a juror to sit in a criminal case was challenged. It appeared that his home was in the State of Virginia, where his parents lived, and that he voted there. For many years he had been in the habit of spending his annual vacation at his home, but during the rest of the year he actually resided at Washington, where he was in business as agent for a Virginia corporation, and he had no intention of leaving his employment in that city. It also appeared that whenever he had been out of employment he returned to his home in Virginia. The court overruled the objection, holding that upon those facts he was to be considered as a resident of the District of Columbia, and was, therefore, eligible to serve as a juror therein under an act of Congress prescribing the qualifications of a trial juror to he citizenship of the United States and residence within the district. A remark of Judge Merrick in delivering the opinion in this case is worthy of repetition: "It will not do to say that one shall have of a community all that he can get within the community, and on the other hand shall not return to the community some corresponding obligation of citizenship." I am, therefore, of the opinion that the commissioner of jurors acted within his power in placing the relator upon the jury list, and that the motion should, therefore, be denied. Motion denied. Misc.] Supreme Court, June, 1896. JOSEPH JENCKS et al., Plaintiffs, v. JOHN J. MILLER et al., (Supreme Court, Westchester Special Term, June, 1896.) One pier owner has no right to extend his pier so as to cut off access to an adjoining pier when both piers extend out the same distance into the river, notwithstanding the fact that the owner of the pier so proposed to be extended has a grant from the State of lands under water and the proposed extension would be built entirely within the limits of such grant., ON July 1, 1874, plaintiffs' grantors obtained from the commissioners of the land office of the State of New York a grant of certain lands under water at Sing Sing, New York. The grant was upon the express condition that within five years from the date thereof the grantees appropriate and apply the premises thereby granted to the purposes of commerce by erecting a dock or docks thereon and filling in the same; otherwise the grant should cease, determine and become void. The north line of said grant ran from a given point on the shore 400 feet out into the waters of the Hudson river. The grantees named in said grant built a pier on the land under water thereby conveyed within five years from the date of such grant; the said pier, however, did not extend out into said river the full length of said grant, to wit, 400 feet, but only 319.10 feet along the north line of said grant. On August 24, 1878, the grantees conveyed the pier which they had erected under said grant to the plaintiffs; the deed did not convey all the land which had been granted by the State, but only so much thereof as was covered by the pier itself, to wit, 319.10 out of 400 feet on the north line of the grant, and in addition thereto some of the land on the shore immediately in front of the pier. This deed also gave the plaintiffs the right to use the water, thirty feet in width, on the south side of said dock for the laying up of vessels and the loading and unloading of the same, and also all water rights in front of said dock. About the year 1880 the defendants' grantors built out into the Hudson river at said place a pier of about the same dimensions as plaintiffs' pier, and extending out into the river no farther than Supreme Court, June, 1896. [Vol. 17. did plaintiffs' pier. Defendants' pier is north of plaintiffs' pier, and the slip between the two is some thirty-six feet in width. Plaintiffs' pier is 60.8 feet wide at the outer end, and defendants' pier is of about the same width. On August 25, 1893, some thirteen years after defendants' grantors had erected their present pier, they also obtained from the commissioners of the land office of the State of New York a grant of land under water covering that portion which is covered by their pier; this grant was for the "beneficial enjoyment" of the same, and the land conveyed thereby on the south side adjoined plaintiffs' grant on the north, and also extended at that point or along that side 400 feet out into the river, commencing at the same point at which plaintiffs' grant commenced. The plaintiffs are engaged as common carriers of passengers and freight, running the steamboat " Sarah A. Jencks," a vessel some 140 feet in length, between Sing Sing and New York city, and they and their common ancestor have been engaged in that business for over forty years, using their present dock at Sing Sing ever since it was built, and also using the one which was there prior to the erection of the present one. The pier of the plaintiffs is also situated at the foot of a public street. Some fifty or sixty feet north of the north line of defendants' pier there empties a stream of water into the Hudson river from the east known as the Kill brook, and at times this brook washes down earth and sediment which rests at the defendants' dock and shoals the water on the different sides of said pier, although the defendants, who are engaged in the coal business, only use the slip on the south side of their pier for the unloading of vessels having coal consigned to them. The defendants at the time of the trial were the lessees of their pier, but held the premises under a contract to purchase the same from the owners thereof. Defendants proposed to erect a breakwater, piling or crib work of piling running out some forty feet from the end of their pier into the water of the Hudson river, which structure would be little narrower than the pier itself. The avowed purpose of this structure was to prevent the infiltration of sediment around said pier and thus the shoaling up, more particularly, of the lower side thereof. Plaintiffs claimed that at times, at least, it was impossible to land their boat at their pier without running the bow of their vessel frequently as much as fifty feet beyond or in front of defendants' pier, and allege that if the obstruction the defendants proposed to build were erected it would prevent Misc.] Supreme Court, June, 1896. the landing of plaintiffs' boat at their own pier by cutting off their right of ingress and egress, and would thus destroy plaintiffs' beneficial use and right of their own pier, and also of their right in and to the beneficial use of the waters surrounding said pier by cutting off their access to said pier. A preliminary injunction restraining the erection of said breakwater or piling was granted, which was continued by consent pending the trial. Hyland & Zabriskie, for plaintiffs. Smith Lent, for defendants. DYKMAN, J. By the common law of England the title to land under navigable waters was vested in the king as the embodiment of sovereign power, and upon the separation from the mother country at the time of the American revolution the people succeeded to the prerogative rights of the crown, and became vested with the title to the beds of navigable waters upon the theory that the people are the successors to the sovereignty of the king. By virtue of this underlying principle the title to the land under the waters of the Hudson river became vested in the people of the State of New York upon the organization of the State government in 1777. Such title continued unlimited and unrestricted until July, 1788, when the State adopted the Constitution of the United States, which contained this provision: "Congress shall have power to regulate commerce with foreign nations, and among the several States and with the Indian tribes." The term commerce as employed in that instrument embraced navigation, and so Congress became vested with the exclusive right to regulate commerce, navigation, etc. Gibbons v. Ogden, 9 Wheat. 189. * * * Then the condition was this: The people of the State continued to own the land under the waters of the Hudson river, and Congress possessed the power to regulate the commerce and navigation thereon. The State could not authorize any impediment to the navigation of the river, nor authorize an impairment or diminution of the rights of the public therein. The State could make grants of land under the waters of the river bed, but they were and are at all times subject and subordinate to the paramount right of congress to regulate the use of the water flowing over the granted land. Supreme Court, June, 1896. [Vol. 17. Wharves and docks are essential to the facilitation of commerce, and they may be constructed by riparian proprietors and grantees of land under water, but if they be so constructed as to impede navigation, the paramount rights of the public are invaded, and a nuisance is created which may be enjoined by the courts at the suit of any person who sustains special injury thereby. Dutton v. Strong, 1 Black, 32. * * * The power and authority of Congress to regulate the construction of wharves and piers in navigable waters lay inert and unexerted until September, 1890, when a law was enacted which among other things provided: "That it shall not be lawful to build any wharf, pier, etc., or structure of any kind in any navigable waters of the United States the permission of the secretary of war, in any port, roadstead, haven, navigable water or other water of the United States, in such manner as shall obstruct or impair navigation, commerce or of sail waters" (§ 7). * * * without Section 10 of that act provides: "That the creation of any obstruction not affirmatively authorized by law to the navigable capacity of any waters in respect of which the United States has jurisdiction is hereby prohibited." The light afforded by the foregoing principles will aid in the examination and solution of the important questions involved in this action. The plaintiffs and the defendants are both owners of a dock at Sing Sing, and their docks both extend into the Hudson river an equal distance. The dock of the plaintiffs is south of that of the defendants, and there is a slip between them. Each of the parties have a grant from the State of New York of the land under the waters of the river which extends westerly beyond the end of their docks, which are both built upon the land so granted. There is a stream of water called the Kill brook, which comes in from the east and empties into the Hudson river immediately north of the defendants' dock. At times that brook washes down earth and sediment which rest at the defendants' dock and shoals the water. For the purpose of arresting that sediment the defendants desire to prolong their dock by the construction of a crib upon the westerly end thereof, and it is to restrain the building of that structure that this action was commenced. The plaintiffs are the owners of a steamboat, which they run between Sing Sing and New York for the transportation of freight and passengers. In bringing their boat to their own dock on her return |