Barnes v. Midland R.R. Terminal Co.

• Citation: 112 N.E. 926,218 N.Y. 91
• Parties: BARNES et al. v. MIDLAND RAILROAD TERMINAL CO.
• Decision Date: 02 May 1916
• Court: New York Court of Appeals

218 N.Y. 91

112 N.E. 926

BARNES et al.

v.MIDLAND RAILROAD TERMINAL CO.

Court of Appeals of New York.

May 2, 1916.

Cross-appeals 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 (161 App. Div. 621,146 N. Y. Supp. 1033) modifying and affirming final judgment for plaintiffs, all parties appeal, with notice of intention to bring up for review the affirmance by the Appellate Division (147 App. Div. 89,131 N. Y. Supp. 750) of an interlocutory judgment. Final judgment reversed, and interlocutory judgment affirmed conditionally.John Brooks Leavitt, of New York City, for plaintiffs.

Alton B. Parker and Alfred G. Reeves, both of New York City, for defendant.

CARDOZO, J.

The action is brought to restrain the continuance of a nuisance and for the recovery of damages. The nuisance complained of is the obstruction of part of the foreshore of Staten Island, and of the Sea Side Boulevard, which is said to be a highway running along the uplands. The case was before this court on an earlier appeal. Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378, 85 N. E. 1093,127 Am. St. Rep. 962. In an opinion by Judge Werner, we defined the relative rights of the littoral owner on the one hand and the public on the other. We held that the littoral owner has the right to construct a pier in order to provide a means of passage from the upland to the sea, that the public must submit to any necessary interference with their right of passage over the foreshore, but that unnecessary obstruction is an invasion of the public right. A new trial followed. The referee granted an interlocutory judgment restraining the defendant from obstructing the passage of the public between high and low water mark in front of the defendant's uplands, restraining the obstruction of the Sea Side Boulevard, and directing a further reference to ascertain the damages. The interlocutory judgment was affirmed at the Appellate Division. 147 App. Div. 89,131 N. Y. Supp. 750. The same referee was appointed to ascertain the damages. He fixed them at $30,753.43, and his report was confirmed at Special Term. On his recommendation, the Special Term. gave the costs of the action to the plaintiffs. At the Appellate Division the award of costs was modified, and in other respects the final judgment was affirmed. 161 App. Div. 621,146 N. Y. Supp. 1033. The case is here on cross-appeals.

[1][2] 1. The defendant complains that the injunction restraining its use of the foreshore is too broad. We think there is merit in the criticism. The defendant is restrained from ‘obstructing the passage of the public under or over its pier at its beach known as Midland Beach, in the county of Richmond, between the lines of high and low water mark as they now exist or hereafter shall exist.’ That restraint, literally and rigorously enforced, might work injustice. There are railings along the sides of the pier, which have been found to be necessary, except as the pier approaches high-water mark, for the protection of the public. A right of passage over the pier would compel those railings to come down. If passage under the pier is free and substantially unobstructed over the entire width of the foreshore, the plaintiffs are entitled to no more. The pier was not built for their use, and is not to be maintained for their convenience. Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 29 Sup. Ct. 661, 53 L. Ed. 1024, 16 Ann. Cas. 1222. But the passage under the pier must be free and substantially unobstructed over the entire width of the foreshore. This means that from high to low water mark it must be at such a height that the public will have no difficulty in walking under it when the tide is low or in going under it in boats when the tide is high. If at any point it is too low, it should be raised to the required height; and, until raised, there should be a substituted right of passage over the pier where passage under it is impeded. We find it difficult to determine from this record whether the height of the pier as now constructed is adequate at all points. The line of high water has moved outward, and the impediments to-day are not the same as those of 1905 when the action was begun. Even if the height is adequate to-day, the advancing and receding deach may make it inadequate hereafter. The plaintiffs are entitled to have the principle declared by which in changing circumstances their rights are to be gauged. The principle is that interference with the right of passage must be limited by necessity; that a pier is an unnecessary obstruction unless there is free passage under it over the entire width of the foreshore; that it must be maintained at a height which will make such passage possible; and that if at any point it does not comply with these requirements, then, until it is made to comply with them, there must be, at such points, a right of passage over it.

[3] Other provisions of the judgment affecting the enjoyment of the foreshore are criticized on like grounds. The defendant is not only restrained from obstructing passage under or over the pier. It is restrained generally from ‘obstructing in any manner the passage of the public over any others portion of its said beach between the lines of high and low water mark, as they now exist or hereafter shall exist.’ The effect of this injunction, literally and rigorously enforced, might be to prevent the defendant from constructing a second pier. The judgment should preserve to the defendant those rights in the foreshore essential, under our previous decision, to its enjoyment of the uplands.

We think therefore that the injunction should be modified so as to restrain the defendant ‘from obstructing the passage of the public under its pier at Midland Beach between the lines of high and low water mark, as they now exist or hereafter shall exist; from maintaining its pier in such a form as to interfere with such passage over the entire width of foreshore between the lines aforesaid; and from denying to the public passage over its pier at any point where passage under it is now or shall hereafter be obstructed.’ It should also be restrained from ‘obstructing in any manner the passage of the public over any other portion of its said beach between the lines of high and low water mark as they now exist or hereafter shall exist, except by the erection of piers or like obstructions necessary to the reasonable enjoyment of its uplands, and so erected as to involve a minimum degree of interference with the public right of passage.’ If these provisions are construed in the light of this opinion, we think their meaning will not be doubtful.

[4][5][6][7][8] 2. The defendant complains of the injunction which restrains it from maintaining ‘any building or structure of any kind within the limits of the Sea Side Boulevard.’ It insists that Sea Side Boulevard has not been proved to be a public highway. This court has jurisdiction to pass upon that question, for the Appellate Division was not unanimous in affirming the interlocutory judgment. We think there is evidence of a dedication to public uses, and that the land was once a highway. But the question remains whether through nonuser the highway has been abandoned. The statute says that:

‘All highways that have ceased to be traveled or used as highways for six years shall cease to be a highway for any purpose.’ L. 1861, c. 311, now embodied in Highway Law, § 234; Consol. Laws, c. 25.

The closing may have been a wrongful act. None the less, if for six years the highway remains closed with the acquiescence of the public, there is an extinguishment of the public right. Horey v. Village of Haverstraw, 124 N. Y. 273, 26 N. E. 532;Excelsior Brick Co. v. Village of Haverstraw, 142 N. Y. 146, 36 N. E. 819;City of Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488,74 N. Y. Supp. 343;Id., 178 N. Y. 561, 70 N. E. 1097;Robins Dry Dock & Repair Co. v. City of N. Y., 155 App. Div. 258,140 N. Y. Supp. 96;Id., 213 N. Y. 631, 107 N. E. 1085. Obstructions of a highway across part of its width only, marrowing but not closing the line of travel, are not sufficient, however long continued, to put an end to its existence. Mangam v. Village of Sing Sing, 26 App. Div. 464,50 N. Y. Supp. 647, affirmed on opinion below, 164 N. Y. 560, 58 N. E. 1089. To have that effect the obstruction must cover the entire width. But, if the entire width is blocked, the obstructed section ceases to be a highway, even though other sections are unobstructed. It is not necessary to show an abandonment along the entire length. Horey v. Village of Haverstraw, supra; Excelsior Brick Co. v. Village of Haverstraw, supra; City of Buffalo v. D., L. & W. R. R. Co., supra; Mangam v. Village of Sing Sing, 11 App. Div. 212,42 N. Y. Supp. 950. These rules have no application where the fee is vested in the public. N. Y. C. & H. R. R. R. Co. v. City of Buffalo, 200 N. Y. 113, 119, 120,93 N. E. 520. But there is no claim that the public right in this road was ever greater than an easement.

[9][10] It is impossible to hold that the Sea Side Boulevard has remained a highway from one end to the other. There are parts of it which may be found, consistently with the evidence, to be a highway to-day. There are other parts which had been closed by the defendant's structures for more than six years before this action was begun. The public authorities acquiesced. The plaintiff's acquiesced. The barriers were not mere encroachments upon part of the highway; they covered its entire width. That is true of the Casino, which was built in 1897. It is true of the bathhouse northeast of the Casino. It it true of the scenic railroad. To accommodate the deflected travel, a new road, Ocean avenue, was built by the defendant a little to the west. The use of the old highway was impossible. That conclusion is not left to...