203 A.D. 700 | N.Y. App. Div. | 1922
The plaintiffs, owning two lots of land on the westerly side of Corbin place at Manhattan Beach, Coney Island, 40 feet front by 144 feet in depth, brought this action in June, 1920, to compel the removal of a bulkhead erected by the defendant bathing park
A trial was had at Special Term, at which witnesses were examined concerning the locus in quo and the history of the foreshore on Coney Island at this point. The plaintiffs’ deed describes the two lots owned by them by metes and bounds and by reference to a map. The deed does not bound the plaintiffs’ lots by the shore or water at any point, and the map referred to does not show the plaintiffs’ lots as abutting on the ocean or foreshore. The testimony shows, and the court so found, that the plaintiffs’ lots are part of the land reclaimed by the common predecessor in title by bulkhead and fill. The court has found upon the evidence that without these artificial barriers the plaintiffs’ lots would have been completely submerged. It was plaintiffs’ contention at the
The learned trial justice has found as matter of fact that the loss of the upland and beach were caused by a series of violent storms occurring between the year 1878 and the date of the trial in 1921, during which large portions of the beach were perceptibly washed away, and as already stated he has found that were it not for these artificial barriers erected by the predecessor owners of the property the plaintiffs’ lots would be completely submerged.
The learned trial justice found as matter of law that the loss of the upland at the cove or bay was caused by inundation or avulsion, that the plaintiffs were not littoral or riparian owners, and had no littoral or riparian rights to the west of their lots over the land of the defendant Bathing Park, Inc., or otherwise, and directed judgment for the defendants dismissing the complaint upon the merits.
I think the judgment was right. The change in the foreshore by which the cove or bay formed at the westerly end of the property of the common grantor, the Manhattan Beach Estates, submerging the land now owned by plaintiffs and defendants, was not a gradual or imperceptible encroachment on the land, but occurred by reason of avulsion, sudden or violent action of the elements perceptible while in progress. The evidence justified the finding of the learned trial justice to that effect. Such loss of the land was not erosion or the gradual eating away of the soil, and did not change the boundaries nor did the owner lose his title where the extent and quantity of his land was apparent, the owner endeavoring as best he might to protect and reclaim his property. (Philadelphia Co. v. Stimson, 223 U. S. 605; Nebraska v. Iowa, 143 id. 359, 361; Matter of City of Buffalo, 206 N. Y. 319; Mulry v. Norton, 100 id. 424; Silver v. Woodbury, Special Term, Kings Co., April 16, 1917; affd., 185 App. Div. 937; reversed as to defendant Attorney-General and otherwise affirmed, 230 N. Y. 627; Gould on Waters [2d ed.], § 159.) It is said in Hargrave’s Law Tracts (Sir Matthew Hale’s De Jure Maris), 15, 17: “ If a subject hath land adjoining the sea, and the violence of the sea swallow it up, but so that yet there be reasonable marks to continue the notice of it; or though the marks be defaced; yet if by situation and extent of quantity, and bounding upon the firm land, the same can be known, though the sea leave this land again, or it be by art or industry regained, the subject does not lose his propriety: and accordingly it was held by Cooke and Foster, M. (7 Jac. C. B.), though the inundation continue forty years.” “ But if it be freely left again by the reflux and recess of the sea, the owner may have
So on the findings of fact in the case at bar sustained by the evidence, the common grantor did not lose title to the land submerged by reason of avulsion and reclaimed by the erection of the. sea wall. The plaintiffs derive title to their lots through this common grantor; the land which they own and upon which ownership their action is based, is land reclaimed by virtue of this well-established principle. And the same right of reclamation vested in the defendant bathing park corporation with the conveyance by the common grantor of the land to the west of plaintiffs’ lots. Said defendant is endeavoring to protect and reclaim its land, and. the bulkhead and fill complained of erected upon its own land is constructed for that legitimate purpose. On the evidence here the plaintiffs were not littoral or riparian owners, their lots were not bounded by the sea or the foreshore. They could reach the water only by trespassing on the lands of the common grantor or defendant. Said defendant, like the common grantor, as a riparian owner had the right to protect its water front, and on the evidence and findings of fact the court was justified in deciding that no right of the plaintiffs to the use of the foreshore proper as it existed prior to the avulsion and no right of access to the sea was interfered with by the construction of the bulkhead complained of.
Neither the complaint nor the evidence in the case presents the issue of interference with the public right of passage along the foreshore. The case is based upon the mistaken claim that plaintiffs are the owners of riparian rights of access to the water from their lots. So far as passage along the foreshore is concerned, no public use of the beach is shown; the only use testified to is by persons coming to the beach by trespass over private property, and it would appear that if the beach at this point is foreshore under the facts here, as to which I express no opinion, the public right of passage if it exists at this place is as effectually blocked by the sea wall which supports and protects the plaintiffs’ lots as by the structure erected by the defendants. Certainly the plaintiffs were not entitled in a court of equity to compel the removal of defendants’ structure.
The judgment should be affirmed, with costs.
Present — Blackmar, P. J., Kelly, Jay cox, Manning and Young, JJ.
Judgment unanimously affirmed, with costs.