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to be found in which it has been held that a construction may be given to a covenant. I do not speak of a limitation in a court of equity, at all, different from that which would be given to it in a court of law. The only rule of construction, in both courts, is the actual intention of the parties, as collected from the words they have used. And certainly there are no words in the covenant relied on, from which it can be inferred that the parties intended that the covenant should embrace any lands to which, at any subsequent time, the corporation might acquire a title. Had such an intention existed, I must think it would have been expressed. At any rate, we have no power to supply it by conjecture.

I pass, then, to the second ground upon which it is insisted that an injunction, as prayed for, ought to be granted. It is said to be necessary to prevent a violation of the trust created by the act of the legislature, from which it is assumed that the corporation derive their title to Castle Garden. I mean the act of March 27, 1821, which declares, that the lands thereby granted to the mayor, aldermen, &c., and their successors, were vested in them "forever, to remain for the purpose of extending the said Battery for a public walk, and for erecting public buildings, and works of defence thereon."

Upon the supposition that what has been called the reversionary interest of the state in Castle Garden passed to and became vested in the corporation by virtue of this act, the answer that has been given by the chief justice to the argument of the plaintiffs' counsel is of itself conclusive. The words of the act do not create a trust for the benefit of individuals, and which private persons, as cestuis que trustent, are competent to enforce. They are simply a dedication of the lands granted to the use, for the specified purposes, of the public at large, and the title, whether legal or equitable, thus acquired by the public, has been effectually barred by the adverse possession of the corporation for a period of over thirty years.

But I shall not confine myself to this answer. I reject entirely the supposition upon which the argument for the plaintiffs is built, that the corporation derive their title to Castle Garden

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from the act of 1821. I am very clearly of opinion that no such title was meant to be given, or could be given, by the legislature when the act was passed. The state had then no title, estate, or interest in or to the lands on which Castle Garden is erected, which could be the subject of transfer.

1st. As to the words of the act-and that we may understand them-it is necessary to bear in mind the actual condition of the premises now called Castle Garden, both as to title and possession at the time the law was passed. In November, 1807, the corporation granted to the United States a small portion of the original Battery, the bounds of which it is needless to specify, fronting Castle Garden, and also a water-lot lying westwardly, "to be made land, and gained out of the Hudson River, of the breadth of three hundred feet,"—which water-lot, however, it appears to be certain the corporation had no power to grant at all, it being admitted by the counsel of all the parties, that the title to all the lands under water in front of the Battery was, at this time, vested exclusively in the state. defect of title the legislature supplied.

This

By the 2d section of an act passed in March, 1808, certain commissioners, appointed under a former act, were empowered "to grant to the United States, for the purpose of providing for the defence of the city, the use of any of the lands and waters belonging to the people of the state, in the city and county of New-York; which lands," (the act proceeds to state,) “shall be granted on the express condition of their reverting to the people of this state, in case they are not applied to the purposes aforesaid." (Sess. L. 1808, ch. 51.)

The commissioners, in execution of the power thus given, in July following made a deed of cession to the United States, of lands under water in front of that part of the Battery which had been granted by the corporation, and extending westwardly into the river to the depth of five hundred feet, thus covering the whole of the water-lot which the corporation had assumed to convey. The government of the United States entered immediately upon the lands thus ceded, filled up a portion of them, connecting them by a bridge with the Battery, and erect

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ed on the ground thus gained from the river an extensive fortification, known for many years as Castle Clinton, being the same building now known as Castle Garden; and in 1821, all the lands thus granted by the corporation and the state, were still in the exclusive possession and occupation of the United States.

Such being the condition of the premises when the act of 1821 was passed, let us now give our attention to the words of the act. The first sentence of the first section declares, that "it shall be lawful for the mayor, aldermen, &c., of the city of New-York, to extend that part of the said city usually called the Battery into the bay, and into the North and East rivers such distance as they may deem proper, not exceeding six hundred feet;" and the next sentence then vests in the corporation, for the purposes already mentioned, all the title of the people of the state to all the lands that the proposed extension was meant

to cover.

The question which arises upon this section plainly is, what we are to understand by the words, "all that part of the city usually called the Battery "-since it is this part alone which the corporation have authority to extend, and it is to the extension of this part alone that a title from the state was meant to be passed. Certainly the words in question do not embrace Castle Garden, or any part of the lands ceded to the United States; for it is not pretended that these were, or ever had been, a part of the Battery, usually or properly so called; and it would be an extravagant supposition that any authority was meant to be given to the corporation, to make an extension into the bay or river in front of the grounds upon which Castle Clinton was then standing; that is, to extend, not the Battery, but the lands of the United States, and upon which, without the consent of the United States, the corporation had no right to enter at all.

Do the words then embrace that part of the Battery which the corporation had before granted to the United States? The necessary reply to this question, it seems to me, is the same as to the former-certainly not. An authority to extend the Bat

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tery six hundred feet implies, that no such extension had then been made; but such an extension of that part of the Battery which belonged to the United States was no longer possible, to the extent of five hundred feet, with the exception of the small space of water covered by the Bridge-it had already been inade. Moreover, the corporation could have no power to extend a part of the Battery not belonging to themselves, nor in their possession. Nor can we be justified in saying that the legislature meant to invade the rights of the United States, by granting such an authority; for it is to be observed, that it is a present and absolute, not a future and contingent authority, that the act of 1821 plainly confers. It is an authority that, if exercised at all, might be exercised at once. Its exercise was not meant to be suspended until the United States should cease to be the owners of the lands, that had been ceded to them.

The true explanation of the words, "that part of the city usually called the Battery"—although I believe it is not given in any of the depositions-is not difficult to be stated. It is found in the deed given by the corporation in 1815, to the purchasers of the lots on the Bowling Green and on State-street. The covenant in that deed describes the lands, to which it relates, as "vacant grounds belonging to the corporation in the vicinity of the premises granted, and commonly called the Battery." I see no reason to doubt that the words, "usually called the Battery," have the same meaning in the act of 1821, and ought therefore to be construed as applying exclusively to grounds then vacant, and then belonging to the corporation. Assuredly the word "Battery" had not a different meaning in 1821, from that which it is known to have borne in 1815. As it then excluded the lands ceded to the United States, it continued to exclude them.

If these observations are just, the necessary conclusions are, that Castle Garden cannot be treated as an extension of the Battery under the act of 1821, and that the corporation do not derive their title to it from that act, and do not hold it subject to the supposed trust which that act created. In my judgment,

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the origin of the title of the corporation, is the act of congress of March, 1822, and the surrender and delivery of the possession which, under that act, was made to the corporation by General Scott, in 1823. From that time, all the lands comprising Castle Garden, originally ceded to the United States, have been treated and used by the corporation as the property of the city, not subject to any trust or dedication whatever; and hence, by an adverse possession, which has now lasted more than twenty-five years, the title of the corporation has become absolute, not only as against individuals, but as against the public, and the state itself. It is a mistake to suppose that the title of the corporation is weakened by not referring it to the act of 1821. On the contrary, it is strengthened and confirmed. It is freed from restrictions by which it might otherwise be embarrassed.

So far, my opinion as to the construction and effect of the act of 1821, is mainly founded on the terms of the law. But, as I have before intimated, I go further, and shall proceed to show that, in 1821, it was not in the power of the legislature, whatever might have been its intention, to convey to the corporation any title to the lands, or any part of the lands which, under the act of 1808, had been ceded to the United States. After that cession, the state was in no sense the owner of those lands. It had no estate or interest in them whatever, which could be the subject of a valid transfer. The deed of cession made by the commissioners of the state is not before us, but we are bound to presume that it corresponded in its terms with those of the act from which they derived their authority. It was, therefore, a grant of the lands, or of the use of the lands, which it described, "upon the express condition of their reverting to the people of the state, in case they should not be applied to the purposes intended:" that is, the defence and safety of the city and harbor. And I confess my surprise that any question should be raised as to the legal operation of such a conveyance. It is quite immaterial whether the grant was of the use of the lands or of the lands themselves, since, whatever may be the form of expression, a grant which trans