Fairchild v. Kraemer
| Decision Date | 20 July 1960 |
| Citation | 11 A.D.2d 232,204 N.Y.S.2d 823 |
| Parties | Sherman M. FAIRCHILD, Appellant, v. Alan G. KRAEMER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Cadwalader, Wickersham & Taft, Jacquelin A. Swords, George M. Vetter, Jr., and H. Paul Burak, New York City, Jacquelin A. Swords, New York City, of counsel, for appellant.
Alan G. Kraemer, in pro. per.
Before NOLAN, P. J., and BELDOCK, UGHETTA, CHRIST and BRENNAN, JJ.
In this action for an injunction and for the recovery of damages, plaintiff seeks to restrain defendant from continuous trespasses in that, without plaintiff's permission and consent and despite plaintiff's objection thereto, defendant has navigated his boat into, and has anchored it in, the northerly portion of a certain boat basin located in the northwest section of Lloyd Neck, Suffolk County. Defendant counterclaimed for the recovery of damages based upon an assault alleged to have been committed upon him by plaintiff's employee acting in the course of his duties and in accordance with plaintiff's authorization and instructions. After trial at the Special Term, judgment was rendered dismissing, on the merits, both the complaint and counterclaim. Plaintiff appeals from that part of the judgment which dismissed the complaint on the merits. No appeal has been taken from that part of the judgment which dismissed the counterclaim.
Lloyd Neck, a large cape extending from the north shore of Long Island into Long Island Sound, is bounded on the east by Huntington Bay, on the west by Oyster Bay and on the north by Long Island Sound. In the northwest corner of the cape there is a boat basin, known as Lloyd Point Basin. It is an egg-shaped body of water, bounded on the east by marshlands and uplands and on the west partly by a jetty of sand and beach extending south from the northerly point of Lloyd Neck, and partly by a breakwater extending north from the westerly coastline of Lloyd Neck. The jetty and breakwater do not meet, but are separated by approximately 500 feet of water in and through which lies the entrance into Lloyd Point Basin. The basin is about seven tenths of a nautical mile long and about three tenths of a nautical mile at its greatest width. At mean low water the basin is 18 feet deep in the center and 9 feet deep at the northerly and southerly ends. The entrance from Long Island Sound is 12 feet deep at mean low water. To maintain this entrance, dredging in the spring of each year has been, and still is, necessary.
It is undisputed that the instant litigation is concerned only with the portion of the basin which is north of the entrance. Plaintiff established that he was the owner of one part, and the lessee of the remainder, of such northerly portion. The premises originally consisted of sand dunes with a series of gravel and sand beach ridges overgrown with cedar trees. It is clear that this basin was artificially created by a series of dredgings which commenced in or about 1893. The proof also established that prior to the dredgings a network of creeks existed in and to the east of the subject area and that one of the creeks, following one of several changed courses, traversed the area to, and opened on, Long Island Sound. As the result of the creation of the basin by the dredgings, three or four of the creeks (embraced in the network of creeks located in the marshlands adjoining the subject area to the east) then flowed and still flow into the basin. The boundaries of the basin were and are clearly and firmly established, and the separation between the Sound and the basin was and is clearly marked and retained by the original shore line or beach front which now consists of and is embraced in the long beach jetty that comes down from Lloyd Point and extends south to the entrance of the basin.
The main questions involved on this appeal are whether defendant, as a member of the public, had and has the right to navigate and anchor in the basin under all of the facts and circumstances presented in the record before us and whether, under the proof and the law applicable thereto, the complaint was properly dismissed on the merits at the Special Term.
In our view the creation of that portion of the basin, owned and leased by plaintiff, did not result in the expansion of the main body of navigable water known as Long Island Sound, for such portion of the basin is clearly marked off and separated from the Sound by the aforesaid sand jetty which, as above stated, extends south along the original shore line from the northerly tip of Lloyd Neck to the entrance of the entire basin. We agree with the...
To continue reading
Request your trial
-
North Carolina v. Alcoa Power Generating, Inc.
...hand, New York and Pennsylvania have actually elected to use the federal navigability test. See, e.g. , Fairchild v. Kraemer , 11 A.D.2d 232, 235, 204 N.Y.S.2d 823 (N.Y. App. Div. 1960) ; Cleveland & Pittsburgh R.R. Co. v. Pittsburgh Coal Co. , 317 Pa. 395, 176 A. 7, 9 (1935). But even then......
-
Bott v. Commission of Natural Resources of State of Mich. Dept. of Natural Resources
...180, 160 N.W.2d 909 (1968).32 Dissenting opinion p. 865.33 See State v. Twiford, 136 N.C. 603, 48 S.E. 586 (1904); Fairchild v. Kraemer, 11 A.D.2d 232, 204 N.Y.S.2d 823 (1960); St Lawrence Shores, Inc. v. State, 60 Misc.2d 74, 302 N.Y.S.2d 606 (1969).34 See Elder v. Delcour, 364 Mo. 835, 26......
-
Hitchings v. Del Rio Woods Recreation & Park Dist.
...Ex Rel. MacMullan v. Hallden, 51 Mich.App. 176, 214 N.W.2d 856; Lamprey v. Metcalf, 52 Minn. 181, 53 N.W. 1139, 1141, 1143; Fairchild v. Kraemer, 11 A.D.2d 232, 235, 204 N.Y.2d 823, 826; Roberts v. Taylor, 47 N.D. 146, 181 N.W. 622, 625--626; Mentor Harbor Yachting Club v. Mentor Lagoons, I......
-
Friends of Thayer Lake LLC v. Brown
...(see e.g. Adirondack League Club v. Sierra Club, 92 N.Y.2d 591, 605, 684 N.Y.S.2d 168, 706 N.E.2d 1192 [1998] ; Fairchild v. Kraemer, 11 A.D.2d 232, 236, 204 N.Y.S.2d 823 [1960] ; compare Morgan v. King, 35 N.Y. 454, 460 [1866] ; People ex rel. Erie R.R. Co. v. State Tax Commn., 266 App.Div......