Tiffany v. Town of Oyster Bay

Citation234 N.Y. 15,136 N.E. 224
PartiesTIFFANY v. TOWN OF OYSTER BAY et al.
Decision Date12 July 1922
CourtNew York Court of Appeals
OPINION TEXT STARTS HERE

Action by Louis C. Tiffany against the Town of Oyster Bay and others. From a judgment of the Appellate Division (192 App. Div. 126,182 N. Y. Supp. 738), reversing a judgment of the Special Term in favor of defendants, defendants appeal.

Judgment of the Appellate Division modified and affirmed.

Crane, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second Department.

Henry A. Uterhart, of New York City, and George B. Stoddart, of Mineola, for appellants.

Frederic R. Coudert, of New York City, Rowland Miles, of Northport, and Wilmot T. Cox, of New York City, for respondent.

POUND, J.

Plaintiff had asserted rights to lands below high-water mark, adjacent to his spacious residential estate on Oyster Bay, along the westerly shore of Cold Spring Harbor, under a grant from the state of New York made to him by the commissioners of the land office. The validity of this grant was challenged by the town, and was in a former action sustained in the trial court and by the Appellate Division. Tiffany v. Town of Oyster Bay, 141 App. Div. 720,126 N. Y. Supp. 910. On appeal the judgment in his favor was reversed on a holding that the waters of Cold Spring Harbor were included in the Governor Andros colonial grant or patent of 1677 to the town of Oyster Bay and that plaintiff had acquired no title thereto. 209 N. Y. 1, 102 N. E. 585. Plaintiff has a shore frontage of about 3,670 feet. Upon the foreshore a wrecked hull of a vessel lay partly imbedded in sand, projecting at about right angles with the shore front. In the month of May, 1913, before the adverse decision of the appeal, but while the case was in this court pending decision, plaintiff took up sand and material, which he deposited to the westward of the hull. Aided by the natural wash along the shore, which the wreck tended to arrest, he thus covered the foreshare with a sloping embankment, its front about a foot above high water, triangular in shape, with its landward base occupying about one-third of plaintiff's frontage. The area is not accurately defined, but was estimated on the argument to be upward of an acre.

After the decision of this court, plaintiff offered to restore the foreshore by removing the fill, thus putting the shore back in the condition it had been. This proposal the town declined, and in June, 1916, it took possession of the filled-in land and employed defendant Kunz to build thereon a structure to contain 33 public bath houses of about 50 feet by 10 or 15 feet each; height not indicated. Plaintiff thereupon began this action, in which he asks leave to restore the foreshore to its original condition, and also asks that defendants be enjoined from building bath houses or any structures whatever thereon, and that he be restored to his rights as a riparian owner of the lands belonging to him.

The trial court held that the filling in of the foreshore was a trespass; that the title of the town, derived from the Andros charter, authorized it to put up the projected bathhouses; and that the filled-in land could be used generally for purposes of public recreation. Tiffany v. Town of Oyster Bay, 104 Misc. Rep. 445,172 N. Y. Supp. 356. The Appellate Division, one of the justices dissenting, reversed the judgment of the trial court, made new findings, and held that the plaintiff was entitled to final judgment enjoining and restraining the defendants from erecting bathhouses or any other structures whatever on the filled-in land and decreeing to the plaintiff his riparian rights, unless the defendant town of Oyster Bay should elect to have the fill removed and the shore restored at plaintiff's expense; in case the defendant town should so elect, the plaintiff to restore the foreshore to its former condition at his expense. Id., 192 App. Div. 126,182 N. Y. Supp. 738.

The only new findings material to the issue made by the Appellate Division are a finding to the effect that the erection of the bathhouse structure interferes with plaintiff's riparian rights as owner of the upland, and a finding to the effect that the maintenance of the fill transforms the plaintiff into an inland owner, by cutting off actual contact with the waters of Cold Spring Harbor to the extent of the fill.

[1] If plaintiff had succeeded in establishing his title to lands under water, below high-water mark, the filled-in lands in front of his upland would have lost their character of foreshore, and would have become upland, stripped of all public easements, and his own easement as riparian owner would have been merged in his superior title. When the sovereign grants to the owner of the adjacent upland the title to lands under navigable waters, such owner may, subject to the limitations imposed by the United States Constitution (Lewis Blue Point Oyster Cultivation Co. v. Briggs, 198 N. Y. 287, 91 N. E. 846,34 L. R. A. [N. S.] 1084,19 Ann. Cas. 694), fill in such lands, make upland out of them, and extinguish the jus publicum (Wetmore v. Brooklyn Gas Light Co., 42 N. Y. 384;People v. Steeplechase Park Co., 218 N. Y. 459, 476,113 N. E. 521, Ann. Cas. 1918B, 1099).

[2] The question is: What are the present rights of the parties in relation thereto? The answer requires a consideration (a) of the jus publicum; (b) the jus privatum; and (c) the right of the owner of the adjacent upland. The law on the subject is rather indefinite. Judges have decided cases and indulged in sife generalities, but have refrained from forming explicit rules unnecessary to the decision. The English cases in point are not wholly applicable to our conditions.

The foreshore, or land under the waters of the sea and its arms, between high and low water mark, is subject, first, to the juspublicum-the right of navigation, and, when the tide is out, the right of access to the water for fishing, bathing, and other lawful purposes, to which the right of passage over the beach may be a necessary incident. Barnes v. Midland R. Terminal Co., 193 N. Y. 378, 384,85 N. E. 1093,127 Am. St. Rep. 962.Such land is also subject, secondly, to the jus privatum, the rights of the owner of the foreshore, the town of Oyster Bay in this case, which holds the land in its corporate political capacity, in trust for the public good. Its rights are general in their character, as yet not defined with accuracy beyond the ownership and regulation of oyster beds and some general aid to commerce, navigation, fishing, or bathing. Such rights are at all times subject to the public rights, and to the right of the riparian owner to access to the water as indicated. Town of Brookhaven, Trustees of Freeholders & Commonalty of, v. Smith, 188 N. Y. 74, 78,80 N. E. 665,9 L. R. A. (N. S.) 326,11 Ann. Cas. 1. The plaintiff's contention is that the right of the town is limited to the improvement of the foreshore for public navigation, the same as if the town grant stopped at highwater mark (Matter of City of New York, 168 N. Y. 134, 61 N. E. 158,56 L. R. A....

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    ......        The control over the oyster beds in tide waters has always been recognized as in the state bordering the tide waters rather ... of submerged tide water lands have been sustained as against the state itself and others (Tiffany v. Town of Oyster Bay, 209 N. Y. 11, 102 N. E. 585;Id., 234 N. Y. 15, 136 N. E. 224, 24 A. L. R. ......
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    ...Mayor, Aldermen and Commonalty of City of New York (1897) 154 N.Y. 61, 76, 47 N.E. 1096, 38 L.R.A. 606; Tiffany v. Town of Oyster Bay (1922) 234 N.Y. 15, 21, 136 N.E. 224, 24 A.L.R. 1267; Matter of City of New York (Jamaica Bay) (1931) 256 N.Y. 382, 389, 176 N.E. 539.)12 No case has been fo......
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