Town Rights and Ferries.
The difference between this town and the city of New-York relative to the water rights of the former, has deservedly excited the attention and interest of our inhabitants, as involving property to a great amount, and unjustly withholding from our town a revenue which would enable it to improve with almost unparalleled rapidity. In order that each person so interested may form a correct opinion of the subject matter in dispute, the Compiler has thought proper, under this head, to lay before them the foundations of the claims on both sides of the question.
October 18, 1667. In the reign of Charles 2d. Richard Nicolls, Esq. Governor General of the Province of New-York, under his Royal Highness James, the Duke of York, &c. afterwards James 2d. of England, granted to the inhabitants of this town a confirmatory patent, acknowledging that they were rightfully, legally and by authority in possession of the property and privileges they then enjoyed. The patent after naming the patentees, and describing the bounds of the town, and binding by the River and not by high water mark, proceeds to say, “Together with all havens, harbors, creeks, marshes, waters, rivers, lakes, fisheries.” “Moreover, I do hereby give, ratify and confirm unto the said patentees and their associates, their heirs, successors and assigns, all the rights and privileges belonging to a town within this government.” Under this patent the town of Brooklyn justly claims the land between high and low water mark on their shore, in opposition to the claims of the Corporation of the city of New-York; and an equal right with them to erect ferries between the town of Brooklyn and the city of New-York.
It does not appear that there was any adverse claim on the part of New-York, until the 27th of April, 1686, nineteen years after the date of the Brooklyn patent, when the Corporation of New-York obtained a charter from Governor Dongan, by which the ferries were granted to them, but not a word mentioned about the land between high and low water mark on the Brooklyn side. From the reading of this charter it appears as if the Governor was doubtful as to his right even to grant the ferry, for it contains an express saving of all the rights of all other persons, bodies politic and corporate, their heirs, successors and assigns, in as ample a manner, as if that charter had not been made.
May 13, 1686. The freeholders and inhabitants of Brooklyn somewhat apprehensive of encroachments by New-York, obtained from Governor Dongan, a patent under the seal of the Colony, fully confirming that granted them by Governor Nicolls.
May 6, 1691. An act was passed by the Governor, Council and General Assembly of the Colony of New-York, “for settling, quieting and confirming unto the cities, towns, manors, and freeholders within this Province, their several grants, patents and rights respectively.” By this act the freeholders and inhabitants of the town of Brooklyn were confirmed in the rights they possessed and enjoyed under their two several patents.
October 12, 1694. The Corporation of New-York, not thinking their foothold on the Brooklyn side sufficiently secure, purchased of one William Morris, for no specific consideration, a piece of land in Brooklyn near the ferry. This deed is the foundation of the Corporation claim to their land in the village of Brooklyn. A copy of which will be found in the appendix marked with the letter A.
Bent on unjustly wresting from the town of Brooklyn their water right, the Corporation on the 19th of April, 1708, obtained from Governor Cornbury, a man infamous for his vices, and disregard of justice, another charter, in which they came out more openly than before, and claimed the vacant land to high water mark, on Nassau Island, reserving to the inhabitants of Brooklyn the right of transporting themselves in their own boats ferriage free, to and from New-York.[6] By this charter, no matter how ample soever they might have considered it at the time, they obtained nothing but vacant land to high water mark; that is the land which was not already granted, and in the possession of some other person or persons, which was not the fact as to the land on the Brooklyn side, it being vested in the patentees, their heirs, successors and assigns forever; so that the only power or authority remaining in the Governor, was to grant the Corporation of New-York, the privilege of buying the water rights of the inhabitants of Brooklyn. But that would not answer their purpose, for those rights could be bought cheaper of Governor Cornbury, than they could of this town.
This proceeding on the part of New-York stimulated the inhabitants of Brooklyn to obtain from the Colonial Legislature in 1721, an act confirming their patent rights.
To obviate the effects of this law, and strengthen the charter of Cornbury, which from the circumstances under which it was obtained, the Corporation feared was invalid, on the 15th of January, 1730, they procured from Governor John Montgomerie, a new charter confirming their pretended right to the land to high water mark on our shore.[7]
The grants from the Corporation of New-York, under their two charters for the water lots on the Brooklyn side, are very artfully and ingeniously drawn. By those grants are only conveyed “all the estate, right, title, interest, property, claim, and demand whatsoever, in law and equity” of them the said Corporation; and their covenant for quiet possession only extends to them and their successors, and not against any other persons lawfully claiming the premises. These grants, in order to save the Corporation harmless against the claims of Brooklyn, also contained a covenant to the following effect: “It is hereby covenanted, granted and agreed upon by and between the parties to these presents (that is, the Corporation of New-York and the person to whom they give the grant,) and the true intent and meaning hereof also is, and it is hereby declared, that this present grant, or any words, or any thing in the same expressed, or contained shall not be adjudged, deemed, construed or taken to be a covenant or covenants on the part and behalf of the said parties of the first part, (that is, the Corporation of New-York) or their successors for any purpose or purposes whatsoever, but only to pass the estate, right, title, and interest, they have or may lawfully claim by virtue of their several charters, of in and to the said premises.” Which covenant evidently shews a want of confidence in the validity of their title on the part of the Corporation.
October 14, 1732. An act was passed by the General Assembly of this Colony, “confirming unto the City of New-York its rights and privileges.” By this act no addition was made to their former pretended rights.
November 14, 1753. The freeholders and inhabitants of this town appointed Jacobus Lefferts, Peter Vandervoort, Jacob Remsen, Rem Remsen, and Nicholas Vechte, Trustees, “to defend our patent where in any manner our liberties, privileges and rights in our patent specified is encroached, lessened or taken away by the commonalty of the city of New-York.” A copy of the proceeding of the town meeting at which the above trustees were elected will be found in the appendix marked B.
Not satisfied with the encroachments they had made, the Corporation began to question the right of the inhabitants of Brooklyn to cross to and from New-York ferriage free in their own boats, and to carry over the inhabitants in those boats;—the result was, that in July, 1745, a suit was commenced by one of the inhabitants of Brooklyn, named Hendrick Remsen, against the Corporation of New-York, which was tried before a jury in Westchester county. A special verdict was found setting forth all its patents and charters, and among other things, that the road from which the said Hendrick Remsen ferried the inhabitants of Brooklyn to and from New-York, “then and long before was laid out for a public highway leading down to low water mark on the East River between the places aforesaid called the Wallaboucht and the Red Hook on Nassau Island, and the jurors aforesaid upon their oath aforesaid, do further say, that the River called the East River, over which the said Hendrick did carry the persons and goods aforesaid, from the said lands between the Wallabocht and the Red Hook, is a large and public and navigable river used by his Majesty’s ships and other ships and smaller vessels employed in trade and commerce, and hath always been so used from the first settlement of this Colony.” On argument judgment was rendered by the Supreme Court of this Colony in the month of October, 1775, in favour of Hendrick Remsen, that he recover his damages against the Mayor, Aldermen and Commonalty of the city of New-York, and the sum of one hundred and eighteen pounds, fourteen shillings and ten pence half penny for his costs and charges. An appeal to the King and Council from this decision, was brought by the Corporation, which was not determined in consequence of the Revolutionary war. There is a tradition in this town that the Corporation of New-York were so apprehensive of this claim on the part of the town of Brooklyn, that in order to disengage Hendrick Remsen from the interest of the town, they gave him a house and lot of land near Coenties Slip, in the city of New-York. How far this tradition is correct, the Compiler is unable to say.—It appears however, that he about that time became in possession of such property, and the same remained in his family within the memory of some of our inhabitants.
Our two Patents are confirmed by the Constitution of this State, which confirms all grants of land within the State, made by the authority of the King of Great Britain or his predecessors, prior to the 14th of August, 1775.
The Compiler thinking it would not be uninteresting to his fellow citizens to see a statement of the amount received by the Corporation of New-York for quit rent on the water lots claimed by them, has given the following short statement.
The Commissioners of the Sinking Fund of the City of New-York have received, from August 23d, 1813, to Dec. 31, 1824.
| For Water lot rents, | $17,635 24 |
| Commutation for water lot rents, | 17,275 41 |
| $34,910 65 | |
| The Corporation of New-York during the present year 1824, have received for water lot rents the sum of | $8,862 97 |
Within a short time the jurisdiction of the village of Brooklyn has been extended beyond low water mark, leaving the pretended right of soil still in the Corporation of New-York.[8] August term, 1821, in the case of Udall vs. the Trustees of Brooklyn, the Supreme Court of this State decided that Kings County, of which the village of Brooklyn is part, includes all the wharves, docks, and other artificial erections in the East River, opposite to the City of New-York, though west of the natural low water mark on the Nassau or Long-Island shore; and the jurisdiction of the village extends to the actual line of low water, whether formed by natural or artificial means. Same term, in the case of Stryker vs. the Mayor, &c. of the City of New-York, the Supreme Court decided that the city and county of New-York includes the whole of the Rivers and harbour adjacent to actual low water mark, on the opposite shores, as the same may be formed, from time to time, by docks, wharves and other permanent erections; and although the jurisdiction of the city does not extend so as to include such wharves, or artificial erections, yet it extends over the ships and vessels floating on the water, though they be fastened to such wharves or docks.
April 9, 1824. The Legislature of the State of New-York in the act to amend the act entitled “an Act to incorporate and vest certain powers in the freeholders and inhabitants of the village of Brooklyn in the County of Kings,” granted this town concurrent jurisdiction with the City of New-York in the service of process, in actions civil and criminal, on board of vessels attached to our wharves; and in the act for the establishment of a Board of Health in the village of Brooklyn, authority is given to the said Board to remove all infected vessels from the wharves within the said village.
The ferries have been unavoidably, in some degree, taken into consideration when speaking of our town rights. The compiler will therefore confine himself to such historical facts, and laws, and such proceedings, passed and had by the Colonial and State legislatures as may relate particularly to them.
During the early years of this Colony, the old ferry was from near the foot of Joralemon-street, to the Breede Graft, now Broad-street, in the City of New-York. At that period a creek ran through the middle of Broad-street, up which the boats ascended to a ferry-house which is still standing. At this time it is difficult to ascertain the exact period when the old ferry was established at its present situation on the Brooklyn side. In 1697, John Aeresen was ferry master.
It appears from the following order, that the Court of Sessions of Kings County, exercised some authority over the ferry between Brooklyn and New-York. October 7, 1690. “Whereas much inconvenience does arise by several negroes coming on this Island from New-York and other places, and from this Island to New-York. It is ordered, that the ferrymen shall not bring or set over any negroes or slaves upon the Sabbath day, without a ticket from their masters.”
Acts have been passed by the Colonial and State legislatures for the purpose of regulating the ferries between this town and the City of New-York, in the following chronological order:
November 2d, 1717, an act was passed, which was revived in the year 1726, and again in 1727. October 14, 1732. Another act was passed for the same purpose. By this act it was provided, “That the ferryman for the time being, shall not impose, exact, demand, or receive any rates or ferriage for any goods or things whatsoever, transported by any of the inhabitants living alongst the River at or near the Ferry on Nassau-Island, in their own boats or canoes,” provided that the same be their own goods or commodities. This act continued in force until the 28th of February, 1789, when another act was passed regulating the ferriage, and containing a similar proviso. April 9, 1813. The last mentioned law was re-enacted, with the same provision.
The winter previous to the prosecution of the suit between Hendrick Remsen, and the Corporatiun of the City of New-York, the inhabitants of Brooklyn made an attempt to obtain from the Colonial legislature, a further confirmation of some of their rights, particularly relating to the ferry; on which application the following proceedings were had.
January 30, 1745-6. In General Assembly, a petition of the Trustees of the town of Brookland, in Kings County, in behalf of themselves, and the freeholders and inhabitants of the said township, was presented to the House and read, setting forth, That a great number of the inhabitants of the said township, living near the ferry from Nassau-Island to New-York, and having their chief dependence of supporting their families by trading to the New-York markets, are by one act of the General Assembly, entitled, an act to regulate the ferry between the City of New-York and the Island of Nassau, and to establish the ferriage thereof, passed in the sixth year of his Majesty’s reign, debarred from transporting their goods in their own vessels, to the said markets, which exposes them to very great hardships, difficulties and expences, and therefore humbly praying that they may have leave to bring in a bill to relieve them from the aforesaid hardships. Upon a motion of Major Van Horne, (of New-York) ordered, that the Clerk of this house serve the Corporation of the City of New-York, with a copy of the said petition forthwith.
In General Assembly, April 12, 1746, Mr. Abraham Lott, according to leave, presented to the house, a bill entitled, “an act to repeal an act therein mentioned, so far as it relates to the freeholders and inhabitants of the township of Brooklyn, in Kings County, within this colony;” which was read the first time, and ordered a second reading.—Ordered, that the Corporation of the City of New-York, be served with a copy of the said bill.
April 18, 1746. In General Assembly. The bill entitled, an act to repeal an act therein mentioned, so far as it relates to the freeholders and inhabitants of the township of Brooklyn, in Kings County, within this colony, being offered to be read a second time, Capt. Richards (of New-York) moved, that the second reading of the said bill might be deferred until the next meeting of the House, after the first day of June next; which was agreed to by the House and ordered accordingly.
June 20, 1746. In General Assembly. A petition of the Mayor, Aldermen and Commonalty, of the City of New-York, was presented to the House and read, setting forth, That the Corporation having been served with a copy of a bill now before this House, entitled, an act to repeal an act therein mentioned, so far as it relates to the freeholders and inhabitants of the township of Brooklyn, in Kings County, within this colony; do conceive that the passing the said Bill into a law, may affect their ancient rights and freehold, and therefore humbly praying that they may be heard by their Counsel against the said bill, at the bar of this House, on Friday next, ordered, that the Trustees of the township of Brooklyn, be heard by their counsel in support of the said Bill, at the bar of this house, on Friday next, and that Mr. William Smith appear for them. Ordered, that the Clerk of this house serve the parties with a copy of these orders forthwith.
June 27, 1746. In General Assembly. The House being informed, that the Corporation of the City of New-York were attending with their Counsel to be heard against the Bill; and that the Trustees of the township of Brooklyn, were also attending with their Counsel to be heard in support of the said Bill; both parties were called in, and the counsel on both sides having been fully heard, for and against the said Bill, they were directed to withdraw; and the Bill being read the second time, the question was put,—whether the said Bill should be committed, and carried in the affirmative in the manner following:—Affirmative, Messrs. Lott, Chambers, Stillwell, Livingston, Harring, Cornell, Abraham Lott, Lecount, Bradt, Nicoll, Hardenbergh, and Gale 12.—Negative, Messrs. Richards, Cruger, Clarkson, Van Horne, Philipse, Morris, Verplank, and Thomas, 8.
July 4, 1746. In General Assembly, the engrossed Bill entitled, an act to repeal an act therein mentioned, so far as it relates to the freeholders and inhabitants of the township of Brooklyn, in Kings County, within this colony, was read the third time, and upon Mr. Speaker’s putting the question, whether the Bill should pass, a motion was made by Col. Morris in the words following, viz.—As this Bill has been already ordered to be engrossed, by a majority of the House, and the question that now is put, is, whether this Bill shall pass; I must beg leave to give my reasons for opposing its passage. The first is, it is alledged by this bill, that the people of Brooklyn had a right, prior to the act passed in the year 1732, which was not proved, nor attempted upon the hearing before this house; but if we pass this Bill, we allow that right to be proved, and then it becomes our allegation, which I conceive, inconsistent with the honor and justice of this house, to alledge any thing in such a case, but what has been proved. The second is, it implies that the act in 1732, took away unjustly, a right from the people of Brooklyn, that they were entitled to. Thirdly, it implies, that the house have fixed the two points before mentioned, and then it will necessarily follow, that we have considered the rights of the Corporation,[9] as well as those of the people of Brooklyn; that we have not, I appeal to the house, who must allow, that no such right ever appeared to us, at least as a House, and for us to declare certain facts by a Bill, which has never been proved, will be doing, what I conceive, we ought not to do, if we make justice and equity the rule of our conduct. For these reasons, I move, that the Bill may be rejected. The question being put thereon it was carried in the negative, in the manner following, viz.——For the negative, Messrs. Chambers, Lott, Cornell, Hardenbergh, A. Lott, Bradt, Lecount, Gale, and Harring, 9. Affirmative, Messrs. Cruger, Morris, Richards, Van Horne, Clarkson, Verplank, Philipse, and Thomas, 8.
Resolved, That the Bill do pass. Ordered, that Colonel Harring, and Mr. Hardenbergh do carry the Bill to the Council and desire their concurrence. By which it appears that it was considered by the House, as well as subsequently by the Supreme Court, that the right of the town was sufficiently proved, notwithstanding the assertions of Colonel Morris.
This Bill by some means was stifled in the Council,[10] and never became a law.
During the Revolution the Old ferry was kept by Messrs. Van Winkle, and Bukett; at which period the usual charge for crossing was six pence for each passenger.
August 1, 1795. The ferry from the foot of Main-street, Brooklyn, to the foot of Catharine-street, New-York, commonly called the New ferry, was established by Messrs. William Furman and Theodosius Hunt, lessees from the Corporation of the City of New-York.
In consequence of the prevalence of the Yellow fever in Brooklyn, in the month of August, 1809, the old ferry was removed to the foot of Joralemon-street, and the boats plied from there to Whitehall, New-York.
On the 4th day of March, 1814. The legislature of this State passed an act allowing William Cutting and others his associates, to charge four cents for each passenger crossing in the Steam-boat to be by them placed on the Old ferry. Previous to this, the fare was two cents for each passenger. May, 1814, the Steam-boat commenced plying on the old ferry between Brooklyn and New-York.
This Ferry Company derive their interest in the old or Fulton ferry, from a lease executed January 24th, 1814, by the Mayor, Aldermen and Commonalty of the City of New-York, to Robert Fulton, and William Cutting. The rent reserved by the Corporation on this lease is $4000 per annum for the first 18 years, and $4500 per annum for the remaining 7 years.[11] It is a difficult matter to speak correctly of the present income of this ferry. At its first establishment the dividends were made on a capital estimated at $45,000, divided into shares of $1000 each, and were made at the rate of 5 per cent. for six months and what remained after this 5 per cent. taken out, formed the surplus dividend. From May 1814, to November 1815, the regular dividends on one share amounted to $157 11½, and during the same period the surplus dividend amounted to $228 21½, making a dividend of $385 33, on one share for about 18 months equal to about 25 per cent. per annum.
At the Session of the Legislature in the winter of 1818, the Corporation of New-York presented a petition praying that they might have the regulation of the rates of ferriage between this town and the city of New-York—against which the Trustees of the village of Brooklyn, and the inhabitants of this town strongly remonstrated, stating that “they had full confidence that the Legislature of this state would never increase the rates of ferriage, nor permit the same to be increased, beyond what is necessary to support the ferries in the best manner; they therefore prayed that the Legislature would not surrender to the Corporation of New-York a right, which had been reserved by the Legislature, and which the petitioners deemed of the greatest importance to the inhabitants of Nassau-Island.”