Barnes v. Midland R. Terminal Co.

• Decision Date: 10 November 1908
• Citation: 85 N.E. 1093,193 N.Y. 378
• Parties: BARNES et al. v. MIDLAND R. TERMINAL CO.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 378

85 N.E. 1093

BARNES et al.

v.MIDLAND R. TERMINAL CO.

Court of Appeals of New York.

Nov. 10, 1908.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Sarah H. Barnes and others against the Midland Railroad Terminal Company. From a judgment of the Appellate Division (126 App. Div. 435,110 N. Y. Supp. 545) affirming an interlocutory judgment, plaintiffs appeal by permission. Question certified answered in the affirmative, and judgment reversed and new trial granted.

The appeal, by permission, was from that part of a judgment which affirmed so much of an interlocutory judgment entered upon the report of a referee as denied plaintiffs' right to an injunction restraining the defendant from obstructing or interfering with the passage of the public over the beach between high and low water mark in front of defendant's upland.

During the period mentioned in the complaint the plaintiffs (with the exception of Putnam, a lessee) were the owners of certain uplands upon Staten Island, fronting on the waters of New York Bay. At the same time the defendant was the owner of land similarly located, but separated from plaintiffs' land by a public road known as ‘Red Lane’ or ‘Lincoln Avenue,’ which runs to the shore and terminates at a bulkhead. The lands of both parties have been so improved as to fit them for use as resorts for public recreation and amusement. This suit was instituted to restrain the defendant from doing certain acts which it is claimed constitute unlawful injuries to plaintiffs' property and their rights therein. These acts, briefly summarized, consist of the defendant's alleged obstruction of a public highway known as the ‘Sea Side Boulevard,’ so as to interfere with the passage of the plaintiffs and the public to and from plaintiffs' property; of the defendant's erection and maintenance of a pier extending from its upland into the water; of the building of fence and other obstructions underneath the pier and a platform with the buildings thereon alongside the pier; by which means it is claimed the defendant has obstructed the passage of the public over the land between high and low water mark, and interfered with the right of the public to reach plaintiffs' premises over the beach; and that the defendant has also interfered with such passage by the public by operating a sand pump and maintaining a sewer which casts water and sewage upon the plaintiffs' premises.

The referee before whom the trial was had made extended findings of fact, only a few of which are material to the present phase of the controversy. Among other things he fround: That on April 2, 1902, the defendant obtained letters patent from the state, granting to it the right ‘to erect on the lands under water herein granted a pier or piers and buildings or structures of a substantial character,’ and conveying the land under water to the defendant upon the following condition: ‘That the party of the second part (defendant), its successors and assigns, shall not make, erect or maintain, or cause or allow to be made, erected or maintained, any fence, building, excavation or other obstruction of any kind in or upon land lying between the lines of high and low water as they now exist, or hereafter shall exist, that shall in any manner obstruct, interfere with, inconvenience, or prevent any person or persons from, or in crossing and recrossing in any manner or way said land between high and low water mark. * * *’

‘That in 1900 and in 1901, prior to obtaining its said letters patent, the defendant constructed a pier from its said upland tract out into the bay about 1,700 feet, the shore end thereof stretching over the beach between high and low water mark, * * * which pier was so constructed as to hinder, obstruct, and at certain times of the tide completely to prevent, the public from passing along the beach dryshod between high and low water mark under the pier. That the defendant also constructed a platform alongside said pier and between it and the bulkhead at the foot of Red lane, which platform, extended out over high-water mark, which as first constructed did not interfere with the passage of the public over the beach between high and low water mark; and that in 1901, and in order to hinder, obstruct, and prevent the public from passing under and over the plaintiff's premises, the said defendant maintained certain planks from spile to spile under the pier so as to form a fence barring passage, and erected a shed on the platform extending to the sea end thereof; * * * and the construction of said planks from spile to spile under the pier, and the maintenance of said shed upon the platform next to the pier, was such that no persons could pass under said pier at certain times of the tide without climbing said fence. * * *’

The referee also found that certain other acts of the defendant, such as building a trestle and track across the beach from the sand pump to a point about 200 feet from the shore end of the pier, and the dripping of water from a sand bin erected by the defendant, interfered with the passage of the public dryshod over the beach between high and low water mark to the plaintiff's premises.

The referee further found that the acts of the defendant in maintaining the pier as above described, and in permitting water to drip over the beach between high and low water mark, were in violation of the above-quoted condition in its grant from the state.

As conclusion of law the referee held: ‘That the acts of the defendant in building and maintaining its pier and in the construction of a shed on the platform adjoining the bulkhead at Red lane, and in building the trestles to its sand bin at the foot of Red lane, and in its operation of the same-although by such acts the public were and are prevented from having free passage to Woodland Beach (plaintiffs' property) over the platform and over the beach between high and low water mark, and although its pier is built and maintained in violation of the conditions in the grant to it from the state of the lands under water-are not such as entitle the plaintiffs or either of them to relief; there being no right in the public to pass over the beach between high and low water mark, and the state alone having the right to enforce the conditions on which the grant was made.’

The referee also decided that the defendant should be perpetually restrained...