132 N.Y.S. 615 | N.Y. App. Div. | 1911
The plaintiff brings this action to .establish its title 'to a strip of beach land along the shore of the Atlantic ocean, and being the extreme southerly portion of the township. This property
In the case at bar ah inlet or river is formed upon, the land of the town of Hempstead; it is a natural waterway in which the tide ebbs and flows, and by imperceptible erosions on the one side and accretions on the -other, the land of the defendant to the westward is shifted and made to attach itself to the lands of the town of Hempstead on the east, and if the land of one lordship could be transferred to. the other by this same process, we see no reason why the same result should not follow here; It is true, of course, in the case at bar that' the evidence does not show an imperceptible change, in the sense that the change
This is not the case of an inundation or submerging of an island, which subsequently reappears by reason of a recession of the waters;, it is an' actual cutting away of the soil which originally belonged to the defendants’ property and carrying it away to the lands of the opposite proprietor and depositing .it in such a manner that it does not, in the process of the change, affix itself to the same location that it originally occupied, for the evidence is conclusive that for the most part the new beach is far south'of the original beach. Under these circumstances
The judgment appealed from should he reversed and a new-trial granted, costs to abide the final award of costs.
Rich, J., concurred; Burr, J., concurred in separate memorandum; Hirschberg, J., dissented; Jenks, P. J., not voting.
I concur with Mr. Justice Woodward that this judgment ought to be-reversed.
Prior to 1870 plaintiff was the owner of a strip of sandy beach,- bounded upon the north by a shallow channel, separating it from the mainland, known as Hicks beach, and connecting Par Rockaway hay on the west with Hempstead bay on the east. Upon the east it was bounded by Broad channel, which connected Hempstead bay with the ocean, arid on the west by land claimed by defendants or then predecessors in title. In 1870, as the result of a violent storm, an inlet was formed through plaintiff’s land which connected said channel on the north with the ocean. This became and has continued to he up to the 'present time a navigable stream of somewhat varying width and depth. The easterly and westerly boundaries of this river were originally entirely upon plaintiff’s land. If it be true that, as the result of this, plaintiff lost title to so much of its land as lay in the bed of this river, it lost it only to the State, and continued to be the riparian owner upon both the east and west sides thereof.' Gradually the position of the bardes of this river shifted to the west until there came a time when the bed of this stream was coincident with the line which had formerly bounded plaintiff’s land upon the west and defendants’ land upon the east. If this stream had not thereafter shifted its banks this controversy could not have arisen. What had previously occurred might be interesting from a historical or scientific standpoint, but the legal rights of the parties would not he affected thereby. . Plaintiff would have been the owner of a plot of land, hounded on the south by the ocean and on
I think that the judgment appealed from should be reversed both on the law and the facts and a new trial'granted, costs to abide the final award of costs.
Judgment reversed and new trial granted, costs to abide the final award of costs.