Tysen v. Cedar Grove Beach Corp.
188 N.Y.S. 361
N.Y. App. Div.
1921
Check Treatment
Kelly, J.:

It will be noted that the decision of the court limits the plaintiffs’ right' to use the land to the part below high-water mark. The contention of the plaintiffs is that the reservation in the deeds gave them the right to use, for all fishing purposes, any portion of the sandy waste lying above high-water mark, which they say might be denominated a beach; that the bungalows interfered with this right; and that, therefore, the judgment did not give to them the full measure of relief to which they are entitled.

It appears on the record that these fishery rights asserted by the "plaintiffs have not been used for about seventy years. The learned justice at Special Term, however, found against the defense of abandonment and adverse possession; and as the defendant has not appealed, these questions are not before us on this record.

It is provided in the Conservation Law (§ 329, as added by Laws of 1912, chap. 318, and amd. by Laws of 1913, chap. 54): “ Fish, except shad, in Raritan bay or waters adjacent thereto in Richmond county shall not be taken except by angling. Shad shall not be taken except by pounds or drifting shad nets from March fifteenth to June fifteenth, both inclusive.” It, therefore, appears that this reserved right of fishery and use of the beach for fishing purposes is of little or no value to the plaintiffs except for the purpose of selling the same to the defendant; whatever it was, it has not been used or asserted for more than seventy years, and the prohibitory statutes and changed conditions in the locality make the alleged right of no practical use to any one. As a rule courts of equity do not enforce such shadowy and unsubstantial *687rights, leaving the parties to their remedy at law. But the judgment in this case adjudicates that they exist but limits them to the beach in front of the defendant’s upland and grants the plaintiffs a right of way over defendant’s land to reach the beach for the purpose of enjoyment of the rights so adjudicated. The defendant does not appeal, but the plaintiffs are not satisfied, contending that they have rights in defendant’s upland above high-water mark.

The language of the reservation in the deed of 1847 gives the plaintiffs no right in the upland. Some confusion has been introduced in the record by the use of the words “ sand waste,” “ sand dunes,” “ sandy beach,” which are not found in the reservation in the deed. When Tysen, the grantor, in 1847 conveyed the premises to Lord, defendant’s predecessor in title, he conveyed not only the upland owned by him, but he assumed to convey the land between high and low-water mark, the “ beach ” in the ordinary and legal interpretation of the word. (Trustees of East Hampton v. Kirk, 68 N. Y. 459.) His deed describes the property by metes and bounds, the line running to the water extends “ to ordinary low water mark; thence along the Beach * * * to the northerly side of a ditch,” etc. Tysen had no title to the beach between high and low-water mark; that constituted the foreshore. But he assumed to convey it, and his grantee in 1847 might assert that as to her his right to use the foreshore was' gone. If he landed upon it or deposited his nets or boats on the foreshore she might assert that he had conveyed that right to her. Therefore, he reserves to himself, his heirs and assigns, “ the fishery and the right to use the beach in front of said premises for all fishing purposes.” He did not reserve any upland or right in the upland. If he had a fishing hut on some part of the upland, the location, of which is extremely indefinite and which disappeared half a century ago, he did not reserve it in the conveyance. Nor did he reserve “ sand dunes,” or “ beach,” or “ sandy waste; ” he reserved the right to use the “ beach in front of said premises ” which he had assumed to convey — the land between high and low-water mark. I think this is the plain meaning of the reservation. Tysen and his successors in title, including the plaintiff, have acquiesced in this inter*688pretation for more than fifty years. Tysen desired to keep the right to land on the beach in front of the premises conveyed. It may be that he had that right as one of the public, but he had assumed to convey it. To extend this reservation so as to include the upland, or any part thereof, is to do violence to the plain language of the deed. He reserved “ the fishery and the right to use the beach in front of said premises.” The word “ fishery ” cannot be construed as a right or easement in the upland. He had the same right of fishery as all other citizens, but he had conveyed his right to use this piece of beach in connection with his right to fish or catch fish. If in 1847, as found by the learned justice at Special Term, there were “ sand dunes ” or a hut on the “ sand dunes,” or if Tysen was accustomed to spread his nets on the “ sand dunes,” such dunes were a part of the upland conveyed and the grantor did not attempt to reserve any right to the hut or to intrude upon any part of the upland.

As matter of fact the evidence shows that the present beach or foreshore is not the beach or foreshore of 1847. That particular strip is now some distance out in the bay covered by water owing to the gradual shifting of the high-water line caused by erosion. Coupled with the fact that this reserved right to use the beach in connection with the fishery has not been used for more than fifty years, the washing away of the original locus in quo by erosion would seem to make the alleged easement or rights to the beach reserved in the deed of 1847 very doubtful and shadowy, but in any event the plaintiffs have failed to establish any right in the upland. (Mulry v. Norton, 100 N. Y. 424; Silver v. Wood-bury, 185 App. Div. 937; affd., as modified, 230 1ST. Y. 627.)

The judgment should be affirmed, with costs.

Present — Blackmar, P. J., Mills, Rich, Kelly and Jaycox, JJ.

Judgment unanimously affirmed, with costs.