People of Town of Smithtown v. Poveromo
| Decision Date | 10 October 1972 |
| Parties | PEOPLE of the TOWN OF SMITHTOWN v. Vito POVEROMO, Defendant. |
| Court | New York District Court |
Charles Cacciabaudo, Town Atty. of Smithtown, for Town of smithtown.
York Iguchi, Huntington, for defendant.
In this action brought by the Town of Smithtown, Suffolk County, New York, against the defendant, Vito Poveromo, the defendant is charged with a violation of Chapter 25B--3 of the Code of said Town, more specifically, the filling in of property on the foreshore of the Nissequogue River.
During the trial it was established that a land-fill operation took place upon property owned and possessed by the defendant. The testimony revealed that fresh fill had been dumped into an area on the north side of Riveria Drive in the Town of Smithtown and that the fill intruded upon a portion of the shore of the Nissequogue River to a point below the mean high water mark.
The applicable sections of the ordinance alleged to have been violated to wit: Local Law Number One, 1970 Marine Law is as follows:
(Italics supplied.)
A violation of the above ordinance is declared pursuant to Section 25B--18 to be a misdemeanor and punishable by a fine not to exceed $100.
After trial the defendant moved to dismiss the Information upon the following grounds: That the People of the Town of Smithtown failed to make out a prima facie case; that the People failed to prove the guilt of the defendant beyond a reasonable doubt; and, that the ordinance as it related to the defendant was unconstitutional and that it was vague, indefinite and uncertain.
It is well established that legislative enactments carry a strong presumption of constitutionality. (Paterson v. Univ. of State of New York, 14 N.Y.2d 432, 252 N.Y.S.2d 452, 201 N.E.2d 27; Martin v. State Liq. Authority, 43 Misc.2d 682, 252 N.Y.S.2d 365, affd. 15 N.Y.2d 707, 256 N.Y.S.2d 336, 204 N.E.2d 496).
It is the defendant's contention that the definition of 'wetland' is so ambiguous and vague that the town could not rely upon the language that was set forth in the ordinance as to the meaning of the word 'wetland' and therefore depended on experts to describe what was meant.
The words used by the expert in defining wetland taken from the minutes of the trial follow:
The following definition of wetlands is extracted verbatim from the ordinance (Local Laws, 1970, No. 1 of Town of Smithtown):
'Wetlands--Lands generally covered or intermittently covered with water to a depth of six (6) feet or less with fresh, brackish or salt water including but not limited (to) thatch meadows, salt marshes, salt meadows, marshes, swamps, and bogs.'
The court cannot see in the expert testimony any amplification, elaboration or explanation of the language in the ordinance. The definition offered by the expert witness, although expressed in his own words, is substantially the same language and terms as used in the ordinance. The word 'wetlands', as defined by him, is clearly understandable, definite and unambiguous.
It is abundantly clear that the technical aspect of the expert testimony was that portion that described tidal flow, vegetation within the tidal zone, and the method used for determining the mean high water mark. This aspect of the testimony is utilized solely for the purpose of illustrating that the area covered by the fill encompassed regions both above and below mean high water.
The presumed purpose of securing the expert's definition was to gain assurance that the term as contemplated by him coincided with the term as used in the ordinance. We are satisfied the two views present no inconsistencies.
The Court cannot join with the defendant in the opinion that the ordinance as it related to the defendant was unconstitutional for the reasons advanced by him.
Insofar as the ordinance may restrict or inhibit the use which one may make of his privately owned property without compensating him for its diminished utility, is the ordinance abhorrent to the spirit of the constitution?
The question can best be answered only after examining the quality of the ownership, the jus privatum.
The court is satisfied with the relative accuracy of the narrative in the people's memorandum of law describing the chronology of grants as they relate to the present ownership of the foreshore which is the subject of this action. More important, for our purposes, is the interpretation, of the grants as they affect the quality of such ownership.
The King owned all the public lands and waterways in England. Under the 'prima facie rule' laid down in Attorney General v. Philpott (27 Bea v. R.C. Cas. 107) he acquired the absolute fee to tide waters and tide flowed lands with an unqualified right (jus privatum) to convey as he saw fit. (Parsons, Public and Private Rights in the Foreshore, 22 Col.L.Rev. 706 (1922).
The consequences of the rule were so oppressive to the public, that the people lodged what may be termed a strenuous protest. The crown was forced to relax the rule and qualify it to the extent that, while holding the absolute fee to the land, it held subject to the rights held by the subjects (jus publicum) of fishing and access for navigation. Jus publicum when applied to feudal England meant the King held his preserves and his waters not as an absolute despot, but in trust for his people.
Therefore, in England at least, it was established that the crown possessed the absolute title to navigable waters and tidelands subject to the rights of the public, as represented by parliament, to make use of the King's property for the purpose of fishing and navigation. In order that a conveyance of such territory be given full effect, it would be necessary for the parliament to join in the transfer.
The governing rule in the colonies with respect to interests in public lands was determined on the basis of the Crown's claim to the territory. All the territory of the colonies, with the exception of New York, was held under a claim of discovery. Accordingly, the 'prima facie' rule, as applied in the mother country wherein the jus privatum was held by the king subject to the jus publicum was also applicable to all crown grants in the colonies.
New York, however, was retaken from the Dutch in New Amsterdam by force of Conquest. The Crown's claim here was based on discovery and conquest and vested in the King an absolute title to the land, independent of Parliamentary Authority, 'until such time as the conquered land should be acquired under a Royal Charter'. The Province of New York never received a charter from the Crown and had the distinction of being the only province among the thirteen original colonies held as a conquered territory under the uncontrolled rule of the King, down to the Revolution of 1776. Quite possibly the jus privatum and jus publicum may have been merged in the King's title independently of the prima facie rule.
'From that time on until the new State of New York was born the Province of New York wended its solitary was as the only one of the Thirteen Original Colonies held as a conquered province in the power of an absolute ruler who by a strange provision of English Common Law was Sovereign on the throne of a then somewhat Limited Monarchy.' (Mershon, Power of the Crown in the Valley of the Hudson, p. 42.)
This was the common law of England with respect to Crown grants of public lands. There is uncertainty, however, as to whether the colonial assemblies ever adopted that part of the common law. The old popular assemblies adopted only so much of the English Common Law as they felt was applicable to conditions in the new country. (Gerard, Titles to Real Estate (3rd Ed., p. 26.)
The prima facie rule of jus privatum had been lying dormant in England since the Grand Remonstrance, (the reaction of the public to the opprobrious effect of Philpott) which led to the beheading of Charles I in 1649. 'There seems to have been no judicial affirmation of the jus privatum and jus publicum rule in English Courts until after the American Revolution . . ..' It would be difficult to prove the prima facie rule was good law in England in 1777.
'A careful study of these old colonial statutes reveals no authority for the proposition that riparian and littoral rights were taken over from the English jurisprudence.' (Parsons, Public and Private Rights in the Foreshore, 22 Col.L.Rev. 706 (1922)).
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