241 A.D. 494 | N.Y. App. Div. | 1934
These four actions involve the same questions of law and fact; they were tried, and are now decided, together.
It appears without dispute that the sand bar is from 400 to 700 feet from the westerly boundary of plaintiffs’ premises as they are described in their several deeds, with this so-called slough or creek, described on plaintiffs’ said map as a part of Centerport bay, intervening between plaintiffs’ said premises and the sand bar. Title to the plaintiffs’ four parcels of upland, which adjoin one another, has been in their respective families for generations, the westerly boundary of each parcel being described in mesne conveyances as “ Cow Harbor ” or “ Cow Bay,” “ Northport Bay,” “ Centerport Bay ” and “ Centerport Harbor.” The conveyances also contain the following provision: “ And also conveying all right, title and interest of the party of the first part of, in and to the lands under the waters of Centerport Harbor in front of and adjacent to said premises to the center of said Harbor.” This provision, however, was ineffective, because it is now conceded that the title to the lands under the waters of the bay was, and is, in the town of Huntington by virtue of a colonial grant to that town. So that the shore fine of the bay is the westerly boundary of the plaintiffs’ lands and is shown by a blue fine on plaintiffs’ map (Exhibit 49); and between that blue line and the sand bar there is an intervening body of water from 400 to 700 feet wide, which is a part of Centerport bay.
It is undisputed that the said sand bar, during the period of its formation and up until January 30, 1930, had been of gradual and imperceptible growth, and, until 1930, was always below high water. It appears that, in 1930, the defendant DeBrabant, with the consent of the town of Huntington, dredged from the bottom
The decision in the case of Mulry v. Norton (100 N. Y. 424), cited by plaintiffs, does not support their claim. In that case property which belonged to plaintiff’s grantor was submerged by water, which later receded, and it was held that title to the land which had formerly been under water belonged to the plaintiff, and the court said: “ Land lost by submergence may be regained by reliction, and its disappearance by erosion may be Returned by accretion, upon which the ownership temporarily' lost will be regained.” And the court further said: “It is equally true, how
Plaintiffs also cite Tiffany v. Town of Oyster Bay (234 N. Y. 15). In that case plaintiff had a shore frontage of 3,670 feet, beyond which was the wrecked hull of a vessel. The Commissioners of the Land Office had made a grant to plaintiff, the validity of which was challenged by the town but which was sustained in the trial court and by the Appellate Division (141 App. Div. 720). On appeal, however, judgment in plaintiff’s favor was reversed, on the ground that the waters of Cold Spring harbor were included in a colonial grant of 1677 to the town, and that plaintiff had acquired no title thereto. (209 N. Y. 1.) Before the decision by the Court of Appeals, plaintiff had filled in a portion of the land under water from his shore out to the wrecked hull, and after that decision plaintiff offered to restore the foreshore by removing the fill, which offer was refused by the town, which took possession of the filled-in land and employed a contractor to construct public bath houses thereon, which Tiffany sought to enjoin. The trial court in the second action held that the filling in of the foreshore was a trespass; that title was in the town, and the filled-in land could be used for the purposes of public recreation. (104 Misc. 445.) On appeal, new findings were made and it was held that plaintiff was entitled to final judgment restraining defendants from erecting bath houses and decreeing plaintiff his riparian rights,, unless the town should elect to have the fill removed and the shore restored at plaintiff’s expense. (192 App. Div. 126.) The Court of Appeals said that if plaintiff had succeeded in establishing his title to the lands under water below high-water mark, the filled-in lands in front of his upland would have lost their character of foreshore and would have become upland, and held that the town had title to the filled land on the foreshore, which retained its character as land under water, and plaintiff as the owner of the adjacent upland had the same rights but no greater rights in and across the same as if no fill had been made, or as if the filling had been
In the case at bar we are not called upon to adjudicate plaintiffs’ rights as riparian owners, as was done in the Tiffany Case (supra), for the reason that the present actions are based solely upon plaintiffs’ claims to title to the fee of the sand bar, and they ask equity to remove clouds alleged to have been created thereon by the quitclaim deeds in question.
From the concession of the plaintiffs that the town of Huntington has title to the lands under water of Centerport bay up to the plaintiffs’ uplands, subject to their riparian rights, and the absence of evidence that the sand bar was created by erosion of plaintiffs’ premises, or that the original westerly boundary of their upland was at a point which is now the westerly boundary of the sand bar or anywhere near it, it follows that plaintiffs have failed to establish title in the bar, and that the judgment in favor of the defendants was right and must be sustained. Our decision, however, goes no further than to determine that plaintiffs have no title to the sand bar as it has been built up, and, therefore, the quitclaim deeds constitute no cloud on their titles. Without expressing any opinion as to whether there has been impairment of the rights of plaintiffs as riparian owners, we leave them free to seek such further remedy as they may wish to pursue.
The judgments dismissing the complaints should be affirmed, with costs.
Present — Lazansky, P. J., Hagarty, Scudder, Tompkins and Davis, JJ.
In each case: Judgment dismissing complaint unanimously affirmed, with costs.