Mulry v. Norton

• Decision Date: 24 November 1885
• Citation: 3 N.E. 581,100 N.Y. 424
• Parties: MULRY v. NORTON.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 424

3 N.E. 581

MULRY

v.NORTON.¹

Court of Appeals of New York.

Filed November 24, 1885.

Wm. H. Dykman, for appellant.

John E. Parsons, for respondent.

RUGER, C. J.

This action involves the title to certain beach lands on the ocean shore at Far Rockaway. No dispute arises over the boundaries of the plat, or the location of the beach as being included within the description in the deeds under which plaintiff's grantors formerly occupied the premises; but it is claimed that the earth or sand composing the beach has been so affected by the storms and tides of the ocean that its ownership was lost by the plaintiff's grantors, and subsequent deposits made within the same boundaries have been acquired by the owners of Long Beach, an island belonging to the town of Hempstead. This result is attempted to be supported by the application of the rule governing the acquisition of real property by alluvion or accretion. The evidence tends to establish the following facts: That the beach in question is within the same boundaries, and, with the exception of a narrow lagoon running crosswise through it, is of the same form and shape now as it existed from the year 1685, when it was conveyed to the plaintiff's remote grantors by its Indian owners, to about the year 1835. Between 1835 and 1869, the changes in the surface of the ground took place which it is claimed worked the transfer of the ownership. At the commencement of the process of change Long Beach consisted of a small island lying southward of Hempstead bay, separated on the west from the beach in dispute by a navigable inlet called indifferently ‘Hog Island,’ or ‘East Rockaway Inlet,’ or ‘Brockle Face Gut.’ This inlet was about half a mile broad, and communicated directly with the westerly end of Hempstead bay. To the west of the inlet, a bar or beach known as ‘Coot's Bar’ extended from the main-land south to a point opposite to Long Beach, and from thence to the west, a distance of about three miles, until it reached the westerly line of the town of Hempstead. The beach to the westward of the inlet, during the period from 1835 to 1869, underwent a succession of changes which it is quite unimportant to follow in detail, but usually consisted of a line or group of bars, shoals, islands, and channels, extending from the inlet to the shore of the main-land beyond the premises in dispute, but which were constantly undergoing physical changes by the operation of the winds, storms, and tides of the ocean. These bars, shoals, and islands were, from the operation of the tides and wind in filling the channels, separating them occasionally, joined together, and at one time, by the removalof the inlet in question to the westward, formed a continuous bar from Long Beach to a point west of the premises in dispute, and remained in that position for about three years. The removal of the inlet to the west was not uniformally effected by gradual progression, but frequently advanced in ‘jumps' of a quarter to half a mile in distance, and frequently added or took away from the lands to which they were joined sections of beach covering half a mile or less in extent, as the result of a single storm. During the period of time in question various inlets, at different points upon this bar, were broken through from time to time and were used by vessels trading in Hempstead bay until they were closed up by the action of the tide and wind, when other channels, by the operation of natural causes, would be opened in new places, and these openings would in turn become the channels through which vessels bound to and from Hempstead bay would pass.

About the year 1869 the inlets to the westward became closed up, and the original inlet adjoining Long Beach was reopened and has since become the sole channel of navigation for vessels entering the bay from the east. The process described finally resulted in attaching the beach in question to the main-land on the west and forming a continuous beach about 1,000 feet broad from such main-land to the inlet at Long Beach, being a distance of about four miles. This process also left a shallow and narrow lagoon or cove, running inside of the beach in question, from Hempstead bay to a point a little to the westward of the premises in dispute, and separating the ocean beach proper from the main-land, lying directly behind it. In 1725 the formation of Coots' bar was of so permanent a character that it became the subject of a grant from its owner, the town of Hempstead, to one Hicks, and from that time to the present the said Hicks and his heirs and grantees have occupied and enjoyed the beach lying between the original Hog island inlet and the west line of the town of Hempstead, and reaching within about 1,800 feet of the premises in dispute. Portions of this beach have at times been submerged or washed away, and it has at times been cut into by the formation of new inlets to Hempstead bay, but at all times there has been some beach lying above the ocean tides, but outside the line of high-water mark, capable of occupation and enjoyment by its owners. Under these circumstances the trial court refused to find that the extension of Long Beach to the westward was made by the process of accretion, and held as a question of law that the defendant's lessors, the town of Hempstead, did not acquire title to the land in dispute by that process, and we concur in the conclusion reached by it.

There seems to be but little conflict in the authorities, or even between counsel in this case, as to what constitutes alluvion or accretion. It was held in Rex v. Lord Yarborough, 3 Barn. & C. 91, that ‘accretion is an increase by imperceptible degrees.’ ‘The lord of the manor claims when there is a gradual accession to land adjacent.’ Washb. Real Prop. 58. ‘The test of what is gradual, as distinguished from what is sudden, seems to be that though witnesses are able to perceive, from time to time, that the land has encroached on the sea line, it is enough if it was done so that they could not perceive the progress at the time it was made.’ Ang. Tide-waters, (1st Ed.,) p. 71. It was said in Emans v. Turnbull, 2 Johns. 314, ‘that if the marine increase be by small and almost imperceptible degrees, it goes to the owner of the land; but if it be sudden and considerable, it belongs to the sovereign;’ citing 2 Bl. Comm. 261; Harg. Law Tr. 28. ‘To acquire title by alluvion, it is necessary that its increase should be imperceptible.’ Halsey v. McCormick, 18 N. Y. 147. It would seem from these definitions that two insuperable objections exist to the claim of the appellant: one being that a large part of the formation of which the beach in question now consists was created anterior to the junction thereof with Long Beach, and constituted property subject to acquisition and ownership by others prior to plaintiff's claim; and, secondly, that the mode of progress of Long Beach to the westward was frequently by sudden removals of the inlet, and the consequent junction of larger and perceptible sections of beach to the easterlylands, as the result of a sudden and violent operation of the tides. We therefore think the court below correctly held that the defendant did not acquire a legal right to the possession of the lands in question by his lease from the town of Hempstead.

It is also claimed by the appellant that even if he has failed to establish title in himself to the premises that the plaintiff still is not entitled to maintain his action because of defects in his own title. It is argued that the beach in question, having been once cut off from the main-land, and surrounded by navigable water, thereby became an island which like other formations of land in tide-water, was the property of the state. The evidence establishes a continuous chain of title to the premises in dispute, from its native Indian owners down to the plaintiff, covering a period of 200 years, and each conveyance bounding its grantee upon the Atlantic ocean. Under the law of this state such a description makes the line of high-water mark the boundary of the granted premises, but it also carries with it the liability of such a line fluctuating by the action of the water. These lines of description, for a period of 150 years, included the locus of the beach in dispute, and the same, with the uplands, was occupied and enjoyed by the plaintiff's grantors, and now remains the property of the plaintiff unless the title thereto has been lost to his grantors through the cause referred to. It is, undoubtedly, true that the proprietorship of lands may be lost by erosion or submergence; the one consisting of a gradual eating away of the soil by the operation of currents or tides, and the other of its disappearance under the water and the formation of a navigable body over it.

The plaintiff's grantors have, at all times since 1684, remained the owners and occupants of the main-land in front of which the beach in dispute now is, and as such owners have been entitled to the rights which attend the title of littoral or riparian owner. ‘They would be entitled to whatever should be gained from the sea by alluvion or dereliction, and their title was liable to be lost by the advance of high-water mark bringing their lands within the ebb and flow of the tide.’ East Hampton v. Kirk, 84 N. Y. 218; 2 Bl. Comm. 262; In re Hull & Selby Ry. Co., 5 Mees. & W. 327. It is not, however, every disappearance of land by erosion or submergence that destroys the title of the true owner or suffices to enable another to acquire it, for the erosion must be accompanied by a transportation of the land beyond the owner's boundary to effect that result, or the submergence followed by such a lapse of time as will preclude the identity of the property from being established upon its reliction. Land lost by submergence may be regained by reliction, and its disappearance by erosion may be returned by accretion, upon which the ownership...