118 N.Y.S. 960 | N.Y. App. Div. | 1909
The plaintiff is the owner of certain uplands including a part of what is known as Bar Beach in the town of North Hempstead) abutting on the shore of Hempstead harbor, an arm of Long Island Sound. Bar Beach is a narrow, sandy beach, extending eastward
The action is brought, and ivas decided by the learned referee, on the theory that the plaintiff, as the, owner of the uplands, is entitled to the exclusive occupancy of the tideway, subject only to the rights of the State or town and to the right of the public to the use thereof in aid of navigation. The plaintiff testified that “ the erectian of these poles has not so far in any way interfered with the access to the use of the beach,” and it is not very plain from his testimony that the poles with the wires upon them will interfere with any use which he contemplates making or which it is practicable for him to make of the southerly side of the beach. There is a finding of fact that the plaintiff has sustained damages in the sum of six cents by the erection of said poles and the stringing of wires, but there is no finding of fact that the plaintiff’s right of access to the navigable waters in front of his uplands has been or will be interfered with by the presence of said poles and wires. The seventh conclusion of law is “ That the entry upon said foreshore by the said defendant and the erection of its poles, cross-arms and the stringing of its wires thereon interferes with the said right of access vested in the plaintiff and constitutes a trespass against the plaintiff.” Manifestly, that finding xvas intended to be what it is labeled, a conclusion of law. While not finding as a fact that the .poles and xvires interfere xvith the plaintiff’s access, the referee concludes as matter of laxv that anything constructed or erected on
The rights of the riparian owner, the sovereign and the public to the land between the high and low-water marks have been the subjeet of much historical research and learned discussion, and it would seem that those rights ought to be precisely defined and limited. However, it appears that the precise rights of the riparian owner have not yet been defined by judicial authority in this State. The decisions in Town of Brookhaven v. Smith (188 N. Y. 74) and Barnes v. Midland R. R. Terminal Co. (193 id. 378) have been construed by an able and careful judge as holding that the complete title, subject to the rights of the public, is in the owner of the uplands. (See Bardes v. Herman, 62 Misc. Rep. 428.) I do not think that the Court of Appeals intended to announce any such doctrine. In view of the exhaustive and able opinions written in Town of Brookhaven v. Smith (supra), it would be a work of supererogatian, which I shall not attempt, to discuss the authorities or the historical development of the law on this subject. Both of the opinions in that case, as I read them, agree upon the following propositions: According to the common law'of England, the king as proprietor had title to the lands under water; though the riparian owner had a right of access over them to the navigable waters, any structure erected by him to utilize that right was a purpresture, an invasion of the proprietary right of the king, it was a public nuisance only when it interfered with navigation'; as sovereign, the king had the right of dominion ov-er such lands in trust for the public in aid of navigation, which he was powerless to alienate, and which, after the Revolution, vested in the States, subject to the rights surrendered to the national government; his rights as proprietor likewise vested in the States except as they had been granted by royal charter to the original proprietors who, however, took them in their corporate capacity in trust for the communities established or to be established. The title which the king held as proprietor, therefore, is now in the successors or grantees of the original proprietors or in the State or its grantees. It must follow, then, that the riparian owner as such has no title to the lands under water. It is true that the prevailing opinion of Judge Gray quotes from Gould on Waters- as follows: “ There is no evidence
It lias never been questioned in this State that, where the royal grants in terms included land under water, title thereto vested in the grantees and is now in their successors or grantees; and it can hardly he said to be the recognized common law of this State that the proprietary rights of the king have been abandoned to, and are now
The cases in this State, most of which are referred to in the cases cited supra, all refer to the right of the riparian owner as an easement only. It is plainly deducible from the Barnes case that the riparian owner and the owner of the title must exercise their respective rights in a reasonable way, consistent with the rights of each other. Both are subject to the supreme right of the State and the national government to exercise dominion for the purposes of navigation. I do not now undertake to define the easement of the owner of the upland, but it is plain that, in order to maintain an action like this, he must show some substantial interference with that easement, irrespective of whether the title is in the State or the town. In that respect the case seems to me precisely like the case of Halleran v. Bell Telephone Co. (64 App. Div. 41; affd., 177 N. Y. 533), in which it was held that an abutter upon the street could not enjoin the maintenance of poles, erected in front of his premises, without showing some substantial damage to his easement.
It seems to me, moreover, that, upon the record in this case, it must be held that the defendant had a right to erect and maintain
Hirschberg, P. J., Jenks and Rich, JJ., concurred; Burr, J., concurred in result.
Judgment reversed and new trial granted, costs to abide the event.