28 N.Y.S. 102 | N.Y. Sup. Ct. | 1894
This action was brought to recover damages for an assault and battery committed by two employes of the defendant. The answer is “molliter manus imposuit,”—that defendant was the owner of a beach whereon the plaintiff was trespassing, and that its employes used no more force than was necessary to prevent him from continuing his trespass. Since August 5, 1889, the defendant has been the owner in fee and in possession of 21 acres of upland at Rockaway Beach, in the town of Hempstead, which is 4,331 feet wide east and west, and is bounded on the south by the Atlantic ocean. April 26, 1890, the state of New York, by its letters patent, granted to the defendant about 100 acres of land, bounded on the north by the south line of the piece of land first mentioned, and extending south below- low-water mark, and into the Atlantic ocean. It appears by undisputed evidence that the defendant used the upland as a place of recreation, and the beach as a bathing place for its guests. On the 25th of July, 1891, the plaintiff entered upon the beach, and was walking between high-water and low-water mark, when he was ordered away by
“Excepting and reserving to all and every the said people the full and free right, liberty, and privilege of entering upon and using all and every part of the ahove-described premises in as ample a manner as they might have done had this power and authority not been given, until the same shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereon, or for the beneficial enjoyment of the same by the adjacent owner.”
It appears that the defendant had erected a pier and dock on the land granted to it by the state, and used the beach as a bathing place in connection writh its upland, thus applying the land granted by the state to the “beneficial enjoyment of the adjacent owner;” and the position that grantees who are in possession of and using the subject of the grant have not the right to exclude persons entering thereon for their own pleasure, or to gratify their curiosity, cannot be maintained. Such a rule would be destructive of many valuable rights acquired in the navigable waters adjacent to the maritime cities of this state. It is sought to maintain this judgment on the theory that the plaintiff entered on the beach