Nance v. Town of Oyster Bay

• Decision Date: 18 November 1963
• Citation: 244 N.Y.S.2d 916,41 Misc.2d 446
• Parties: John W. NANCE, Plaintiff, v. The TOWN OF OYSTER BAY et al., Defendants.
• Court: New York Supreme Court

Page 916

244 N.Y.S.2d 916

41 Misc.2d 446

John W. NANCE, Plaintiff, v. The TOWN OF OYSTER BAY et al., Defendants.

Supreme Court, Special Term, Nassau County, Part III.

Nov. 18, 1963.

Henry W. Schober, Mineola, for plaintiff.

Charles T. Matthews, Huntington, for defendant Board of Trustees of Town of Huntington and Town of Huntington.

Attilio E. Braune, Town Attorney, Carmelo C. Tese, Oyster Bay, of counsel, for defendant Town of Oyster Bay and Town Board of Town of Oyster Bay.

Foley & Martin, New York City, William M. Smith, Jerome Doran, Garden City, and George A. Dean, New york City, of counsel, for defendant United States Dredging Corp.

MARIO PITTONI, Justice.

The plaintiff has brought this action pursuant to section 51 of the General Municipal Law as a taxpayer, and he makes claim on behalf of the Town of Oyster Bay for damages allegedly sustained by Oyster Bay by reason of an alleged trespass committed by defendant United States Dredging Corporation under a contract with defendant Town of Huntington in dredging the under water lands of Cold Spring Harbor and the removal therefrom of sand, gravel and other materials. The plaintiff claims that all this land belonged to Oyster Bay, not Huntington.

An order of this Court dated January 19, 1962 directed that 'the issues of liability of the defendants, United States Dredging Corporation, Town of Oyster Bay and the Town Board of Oyster Bay, be separately tried prior to the trial of other issues in this case * * *', and the trial of these issues, as so directed, has taken place before me.

This is another controversy in a long series of litigations involving the true meaning and proper construction of ancient colonial charters relating to title to under water lands on Long Island, and in this litigation the rights of the parties depend upon the title to the under water land in the southerly part of the bay known as Cold Spring Harbor (hereinafter called the Harbor). The Harbor is a body of water on the north shore of Long Island between the towns of Oyster Bay, Nassau County, and Huntington, Suffolk County, and is connected with and permeated by the waters of the Long Island Sound.

We are now faced with four or five different claims to the same under water land in the southerly part of the Harbor. The Town of Oyster Bay claims the under water land easterly all the way over to the high watermark of the east bank, or Huntington side. The Town of Huntington, on the other hand, claims all the under water land westerly all the way over to the west bank, or Oyster Bay side. Another defendant, the United States Dredging Corporation, claims that the under water land belongs to private owners. Other claimants have been mentioned, but they have no standing in this action and their contentions are not discussed.

I shall consider later in this opinion, after I have analyzed the substantive issues, whether the plaintiff was authorized to bring this action, for until those issues have been determined, I cannot properly pass upon and decide the plaintiff's right to bring this action.

As the Town of Huntington properly points out, before the plaintiff can sue and succeed he must do so on the strength of Oyster Bay's title and not on the weakness of Huntington's. He must affirmatively establish in this action that title to the lands involved belong to Oyster Bay.

The contention of the United States Dredging Corporation (hereinafter called the Dredging Company) will be considered first. It contends that title to these under water lands belongs to private owners as successors to the rights and titles of old or ancient proprietors (Ex. E). The first deed in the chain put forth by the Dredging Company is one dated February 28, 1712 from the Trustees of Oyster Bay to Daniel Ireland, but this deed granted title only for uplands. Thus there never was any grant by the Town of Oyster Bay or its predecessors of any under water lands of the Harbor to those mentioned in Exhibit E. Nor is there any presumption, permissible inference or any other allowable conclusion from any deeds in evidence placing title to these under water lands to private owners, for in the absence of language clearly indicative of any different intent, grants of land by municipalities or other governmental bodies, where the lands are bounded by navigable waters or by waters whose tides ebb and flow, carry title only to the high watermark (Tiffany v. Town of Oyster Bay, 209 N.Y. 1, 9, 102 N.E. 585, 587; Matter of Mayor of the City of New York, 182 N.Y. 361, 365, 75 N.E. 156, 157). In Matter of Mayor of the City of New York, the court stated as follows:

'The rights of the sovereign, whether crown or state, to land under water in navigable streams and arms of the sea are doubtless twofold, proprietary and governmental. As proprietor, the sovereign may sell or convey to others, but as to the power to govern the sovereign holds as trustee for the use of the public, under such laws, rules, and regulations as may from time to time be adopted and which shall be deemed to best serve the interests of commerce and the state. These powers may be transferred by the sovereign to local subordinate governments which have been established, constituting such governments the trustees of the public and the guardians of the rights and privileges of the people. * * * While the king had the power to convey the tideway on the shores of the high seas and navigable rivers, he will not be presumed to have done so by merely bounding the conveyance upon the sea or the river. Such conveyance will carry title only to high-water mark. Other words must be employed in the conveyance which would clearly indicate his purpose and intent to convey the lands under water in order to pass the title thereto. Trustees of Brookhaven v. Strong, 60 N.Y 56; Sage v. Mayor, etc., of N. Y., 154 N.Y. 61, 47 N.E. 1096, 38 L.R.A. 606; Mayor, etc., of N. Y. v. Hart, 95 N.Y. 443.'

Clearly, therefore, the Dredging Company has failed to establish that these under water lands belong to private owners.

Huntington claims title to all the under water land of the inner Harbor. It argues in part that it has title by the exercise of its propriety rights over the area and cites Knapp v. Fasbender, 1 N.Y.2d 212, 151 N.Y.S.2d 668, 134 N.E.2d 482 and Robins v. Ackerly, 91 N.Y. 98 in support of its contention. However, these cases do not help Huntington because the Fasbender case merely passed upon the constitutionality of a Huntington Town Board resolution which included a contract 'for dredging of Huntington's harbors and bays * * *', and the Robins case involved 'the right of the plaintiff to use land under water in Northport Harbor * * * for the purpose of an oyster bed.' These cases clearly fail to establish, factually or in legal principle, the position for which they are cited. Furthermore, in at least one instance, Huntington, in litigation brought against it by the Village of Lloyd Harbor, disclaimed jurisdiction over certain lands located on the eastern shore of the Harbor, but north of the present contested area, on the ground that this area was in the jurisdiction of Oyster Bay (see Jennings v. Watt, 264 N.Y. 306, 309, 310, 190 N.E. 650, 651). Be that as it may, Oyster Bay, over a century ago, claimed propriety rights to this same under water land (see Rogers v. Jones, 1 Wend. 237) and did so again at the turn of the century against a purported grant by the State of New York (see Tiffany v. Town of Oyster Bay, 209 N.Y. 1, 102 N.E. 585). So where are we on these conflicting claims? Surely we do not have any sufficient foundation for title in Huntington by any adverse claim or possession. Even if Huntington were able to raise a presumption of title by long duration of adverse possession, that presumption would be rebuttable and would vanish when overcome by evidence or authority establishing actual title in someone else (Town of Oyster Bay v. Stehli, 2 Dept., 169 App.Div. 257, 154 N.Y.S. 849; Price v. Brown, 101 N.Y. 669, 5 N.E. 434).

Any claim by Huntington to these under water lands by reason of any early grants, conveyances, charters or patents must also fail. Nearly all the Long Island towns, including the Town of Huntington, were created by royal charters, and the patents were intended not only to create the corporate bodies but also to convey title to the land within the bounds of the town. So origin of the title to the property must be traced to the grant by the Crown to the Duke of York and the royal charters and patents issued by the Duke's governors (Trustees, etc., of Town of Southampton v. Mecox Bay Oyster Co., 116 N.Y. 1, 22 N.E. 387). The Duke of York's conveyance or grant to Huntington in 1666, 1688 and 1694 (Exs. 4, 5, 6) of the Huntington west boundary was fixed as * * * from a Certaine River or Creeke on the west--commonly called by the Indyans by the name of Nachaquatack and by the English the Cold Spring * * *.'

Thus Huntington received lands only up to the east bank of the Harbor at high watermark and, nothing else being said in the grants, no under water land west thereof (Matter of Mayor of City of New York, 182 N.Y. 361, 75 N.E. 156; Sage v. Mayor of City of New York, 154 N.Y. 61, 47 N.E. 1096, 38 L.R.A. 606).

Although the Huntington brief appears to have discarded any claim of title through Indians, Huntington did spend a great deal of time during the trial to establish its title through Indians by introducing many historical books and by the testimony of Roy Lott, the Town of Huntington Historian (p. 268, 334-342). Among other things, Mr. Lott described how the land was deeded by the Indians, in some cases several times, for coats, kettles and similar articles, and later for 'wampum'. I do believe Huntington was sincere in offering this evidence and was not motivated by a mere desire to entertain me in this serious and difficult case with pleasant and interesting irrelevancies. Be that as it may, this contention is...