192 A.D. 126 | N.Y. App. Div. | 1920
Lead Opinion
The prior decision (Tiffany v. Town of Oyster Bay, 209 N. Y. 1) held that the prior Andros patent took away from the State the power to grant to upland owners .on this harbor any rights in lands below high-water mark. But it did not settle what were the town’s rights and powers in the soil beneath Cold Spring Harbor. Such town title is subject to public rights of navigation and to the rights of 'access by riparian owners. (Town of Brookhaven v. Smith, 188 N. Y. 74, 78.) As patentee of the grant including this harbor, has the town the right to erect bathhouses upon this filled-in foreshore? Can it thus use the raised beach to the prejudice of the upland owner? The town’s rights were public in this estuary; such, for example, as ownership and regulation over oyster or other shell fish beds (Rogers v. Jones, 1 Wend. 237), with a general authority to preserve the harbor facilities, including the power (under the Federal government) to deepen, improve and protect them. But, except for some aid to commerce, fishing or navigation, I find no power to fill in the harbor, or to maintain parks or to establish recreation grounds upon lands reclaimed from lands under the waters of this harbor. Here the town proposes to erect an opus manufactum, such as a permanent building, on this outer shore fronting plaintiff’s uplands. Whether the extending shore surface be from gradual accretion, as alluvion, or by more violent means, there is no authority for such a building in front of a littoral owner, to cover and encroach upon made ground where formerly were public rights to navigate at high water, and at low water a right or servitude for a highway for public passage. It is not found that this fill has obstructed the public right of passage along this shore. In discussing public rights on the sea shore, an acknowledged authority has' declared: “ Quays, wharfs, and embankments in general, below high-water mark, convert that which was shore into terra firma, being, in fact, so much land gained from the sea, and therefore no longer shore. If any ground be left on the other side, towards the sea, that may be shore, and subject as before; but no one can suppose that an embankment by which the soil is rescued from the sea by the owner of the
But even if the solemn grant from the State as sovereign, and its confirmation by a divided court, be ignored, and plaintiff’s act in improving his front be tested by the final outcome of his litigation, it was not unlike the instance of a wharf owner extending his structure beyond harbor lines. The part going beyond the limits could be removed as a nuisance (People v. Vanderbilt, 38 Barb. 282; affd., 28 N. Y. 396), but not used for municipal purposes. In such circumstances lands in front of a riparian owner are not building sites save for structures in aid of navigation; and no supervening right over any part of such place can be exercised or maintained to the prejudice of the riparian owner. (Bowman v. Wathen, 2 McLean, 376; Matter of City of Buffalo, 206 N. Y. 319, 329; Morgan v. Livingston, 6 Mart. [La.] 228.) I cannot agree that if plaintiff still has a means of access over “ a considerable portion of his original shore line,” the town could take away such approach over his remaining frontage. Eiparian rights include accretions to the shore, so that the boundary may go outwards with the extension of the shore fine. (Mulry v. Norton, 100 N. Y. 424.)
The town itself cannot lawfully interfere with, much less obstruct by buildings, public rights of passage along such
A public bathhouse incidentally raises another question. The public have no right to pass over the foreshore in England to bathe in the sea. (Brinckman v. Matley, L. R. [1904] 2 Ch. 313.) The public right to bathe, save at designated places, is doubtful in this country. (Hunt v. Graham, 15 Penn. Super. Ct. Rep. 42.)
As land held by towns under Colonial patent is proprietary, so that its disposition and control do not require legislative sanction (Town of Islip v. Estates of Havemeyer Point, 224 N. Y. 449), special scrutiny should be given to such rights over bays, harbors and waters, to see that, by novel assertion thereof, the rights of upland owners be not sacrified.
I advise that the judgment be reversed, and that defendants be restrained from erecting bathhouses, or other permanent structures, upon this filled-in land; with, however, a provision that the officials of Oyster Bay, notwithstanding their former refusal, may within thirty days elect to have this fill removed, and the shore restored at the plaintiff’s expense; that the finding of fact numbered 2 be modified by striking out the words “ in front of his entire upland; ” findings of fact numbered 8, 9, 10 and 13, and the conclusions of law numbered 3, 4, 5, 7 and 8 be severally reversed and rescinded. This reversal to be without costs of this appeal.
Mills, Rich and Kelly, JJ., concur; Jaycox, J., reads to affirm.
Dissenting Opinion
The questions involved in this case necessarily are only those arising between the plaintiff, as an upland owner, and the town of Oyster Bay, as the owner of the land under water in Cold Spring Harbor adjoining the plaintiff’s upland. The question of the rights of navigation or as to whether the land which the plaintiff seeks to remove constitute a purpresture
The plaintiff is the owner of a large tract of upland on the westerly side of Cold Spring Harbor at or near the head of the harbor. He applied to the Commissioners of the Land Office of the State of New York for a grant of land under the waters of said harbor in front of his upland. This application was opposed by the town but was granted by the said Commissioners and a grant was made to the plaintiff on the 30th of March, 1905, of something over twenty-one acres of land under the waters of said harbor. As soon as the plaintiff started to make improvements upon the land thus granted, he was notified by the authorities of the town of Oyster Bay that it claimed title to the lands under the water of said harbor, and the plaintiff having refused to remove the structures placed upon the premises by him, the town commenced to remove the same. Thereafter, and on or about April 25, 1908, the plaintiff commenced an action in the Supreme Court against the town of Oyster Bay and the then highway commissioner of the town, seeking to restrain the defendants from removing or attempting to remove any jetty, wall or structure erected by the plaintiff on the premises below high-water mark! This action was brought to trial at Special Term and a decision rendered in favor of the plaintiff granting the injunction as prayed for. The judgment was entered January 7, 1909. An appeal was then taken to the Appellate Division, where the judgment was affirmed by a divided court (141 App. Div. 720). Upon an appeal by the defendants to the Court of Appeals the judgment in favor of the plaintiff was reversed. (209 N. Y. 1). Upon a new trial the complaint was dismissed upon the merits by a judgment entered February 7, 1914. In the meantime, and while the
I think the determination of this action can be based upon the solution of one question only, and that is—has the plaintiff shown himself entitled to equitable relief? The claim of the town to the ownership of the lands under water of this harbor is not a modern conception of its rights under the charter or patent granted by Governor Andros to it on the 29th day of September, 1677. In Rogers v. Jones (1 Wend. 237) it was held that the town of Oyster Bay had an exclusive
This was the condition of the law when the plaintiff made his application to the Commissioners of the Land Office. The defendant town was guilty of no laches; it did not sleep upon its rights; it asserted them promptly, with insistence and pertinacity. The situation is, therefore, that the plaintiff, against the defendant’s protest, has changed the defendant’s property from land under water to upland, in which condition he manifestly wished to use it for bathhouses and other kindred purposes and now, when the defendant wishes to make use of it for the same purpose, the plaintiff seeks to restrain the town from such use of the land and desires to be permitted to restore the property to its former condition. When the plaintiff did the filling in in question, he was a trespasser, and he now
In Kansas Pacific Ry. Co. v. Mihlman (supra) the facts are closely analogous to the facts involved in this case. In that case a trespasser had dug a ditch upon the property of another and it was held that he had no right to re-enter for the purpose of filling up the ditch and restoring it to its original condition even if the defendant originally dug the ditch in the belief that he had a right to do so. Mr. Justice Brewer said: “And what right does the first trespass give the trespasser to reenter and commit a second trespass? True, in this case [i. e., Holmes v. Wilson, 37 Eng. C. L. 273] the plaintiff had requested the trustees to remove the buttresses, and that might be considered a license to enter, and a waiver of the trespass. But where there is no such request, as in the case before us, how is it? If the railway company had entered to fill up the ditches, could not Mihlman have maintained his action for that as a trespass? Was he not at liberty to appropriate the
In Warner v. Fountain (supra) it was held that where one person by mistake builds a house upon the lands of another the house belongs to the latter and cannot be removed by the former. (See, also, Village of St. Johnsville v. Smith, 184 N. Y. 341.)
These authorities, I think, are conclusive. The plaintiff has not shown himself entitled to relief in equity. I am not unmindful of the fact that there are authorities to the effect that the owner of land upon which a structure has been erected by mistake, upon going into equity for relief in some respect may be compelled to pay the value of the structure erected upon his premises. Those cases, however, are not in point here, and I see no benefit to be derived from their discussion. If I am correct in holding that the plaintiff is not entitled to equitable relief, then I think the conclusion necessarily follows that the land upon which the defendant seeks to erect bathhouses is upland, and it is entitled to make such use of this upland as it sees fit. The defendant’s land was land under water. Some portion of it was covered with water at all tides, as I understand the situation,’ and some portion of it was submerged at high tide and laid bare at low tide. The plaintiff converted all of it into upland. He desired to use it himself as upland, but now that his title to it has failed, he desires to prevent the defendant from making such use of it. It is true that under this situation the waters of the bay would no longer lap the shores of the plaintiff’s property, but that is a situation of his own creation. If in time the action of the waters washes this fill away, the plaintiff will be restored to his original position. I think he must rest content with the situation as he created it.
My brother Putnam in his opinion says: “ The town itself cannot lawfully interfere with, much less obstruct by buildings, public rights of passage along such foreshore. At one stage of the tide such buildings are over lands that have been in the path of navigation of small vessels. At the ebb, such structures violate the jus publicum, and could be abated as a purpresture
I agree with the conclusion of my associate that the defendant was entitled to restitution if it desired it, and Haebler v. Myers (132 N. Y. 363) and the other cases cited are authority for this proposition, but no case is cited and I have seen none in which it is held that the successful party may have restitution forced upon him whether he desires it or not.
It is now proposed to reverse the judgment in this case upon the curious theory that the upland created by the plaintiff in this action is a nuisance because it obstructs navigation. The answers to this are numerous and complete. First, The action is not based upon any such theory. The plaintiff seeks to enjoin the erection of the bathhouses and to be permitted to remove the fill made by him because it interferes with his approach to the water and not because it in any wise interferes with navigation. Second. As an interference with navigation it causes no special injury to the plaintiff, and the plaintiff would not, therefore, be entitled to maintain an action to have the same abated. Third. When the plaintiff made this fill and created this upland it was done to improve navigation and for the benefit of commerce, and I am sure the change of ownership will not convert the benefit or improvement into a nuisance. Real estate is not endowed with any such chameleon-like characteristics. If this upland did not interfere with navigation when the plaintiff owned it, it is quite certain it does not interfere with navigation now.
The right of the public to pass along the foreshore for the purpose of bathing is not involved in this action. The public right of passage upon the foreshore is not interfered with by these buildings. For these reasons I recommend that the judgment appealed from be affirmed, with costs.
