People v. Steeplechase Park Co.

• Decision Date: 11 July 1916
• Citation: 218 N.Y. 459,113 N.E. 521
• Parties: PEOPLE v. STEEPLECHASE PARK CO. et al.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 459

113 N.E. 521

PEOPLE

v.STEEPLECHASE PARK CO. et al.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by the People against the Steeplechase Park Company and others. From a judgment (165 App. Div. 231,151 N. Y. Supp. 157)affirming a judgment (82 Misc. Rep. 247,143 N. Y. Supp. 503) in favor of plaintiff directing the removal of certain encroaching structures from the foreshore of Coney Island, defendants appeal. Affirmed in part and reversed in part.

The defendants, or one or more of them, are in possession of certain real property at Coney Island, in the county of Kings, extending from an avenue known as Surf avenue, southerly to high-water mark of the Atlantic Ocean, a distance of about 845 feet on the westerly side thereof, and about 757 feet on the easterly side thereof. Said real property is about 633 feet wide and extends approximately from the westerly boundary of West Nineteenth street on the west to the easterly boundary of West Sixteenth street on the east. On this real property an amusement park is maintained.

The defendant Huber is found to be the owner of the fee of 297.71 feet in width of said real property along the westerly side thereof extending from high-water mark to Surf avenue. The defendant Steeplechase Company is found to be the owner of the fee of 148.63 feet in width of the real property adjoining on the east the said real property owned by the defendant Huber, and which real property extends from high-water mark to Surf avenue.

The defendants Tilyou and Hogg are the owners of the fee of a part of said real property adjoining on the east the parcel owned by the Steeplechase Company which part so owned by them is 131.11 feet wide and extends from high-water mark to said Surf avenue.

It does not appear who is the owner of the fee of the remaining, about 56 feet in width of said real property, making up the 633 feet in width referred to as extending from said high-water mark to Surf avenue. The land between high-water mark and low-water mark fronting the lands owned as aforesaid is 122 feet wide at the westerly end thereof-125 feet wide measured from the middle of said park-and 133 feet wide measured from the easterly side of said park. It does not appear that the state has ever granted the lands under water south of and opposite that part of the real property owned by the defendants Tilyou and Hogg, or that part of the real property described as adjoining their lands on the east.

The defendant Huber, on the 7th day of May, 1897, made application to the commissioners of the land office of this state for a grant of land under water adjacent to the property found to be owned by her in fee. On October 4, 1897, a grant was made to her, of which the following is a copy:

‘The People of the State of New York, by the Grace of God Free and Independent. To All to Whom These Presents Shall Come, Greeting:

‘Know ye, that, pursuant to a resolution of the commissioners of our land office, dated the thirtieth day of September, 1897, we have given and granted, and by these presents do give and grant unto Emilie Huber, her heirs and assigns, the land under water, and between high and low water mark, described as follows, to wit:

‘All that certain piece or parcel of land under waters of the Atlantic Ocean, in front of and adjacent to upland of said Emilie Huber at Coney Island in the city of Brooklyn in our county of Kings described as follows, to wit:

‘Beginning at a point on the mean high water line of the Atlantic Ocean, where the same is intersected by the division line between old lot number twenty-eight and old lot number thirtyone of the common lands of the town of Gravesend, said division line between the westerly line of the upland of Emilie Huber, and said point of intersection being located eight hundred and sixty-seven and thirty-three one-hundredths feet southerly from the southerly line of Surf avenue, measured along said division line; running thence on a line parallel with West Nineteenth street south twenty-nine minutes, thirty seconds east fifteen hundred feet; thence north eighty-nine degrees, thirty minutes and thirty seconds east two hundred ninety-seven and seventy one-hundredths feet; thence on a line parallel with West Nineteenth street, north twenty-nine minutes, thirty seconds west fifteen hundred feet to mean high water line; thence along said mean high water line south eighty-nine degrees, thirty minutes thirty seconds west two hundred ninety-seven and seventy one-hundredths feet to the place of beginning, containing ten and one-fourth acres.

‘In testimony whereof, we have caused these our letters be made patent, and the great seal of our said state to be hereunto affixed.

‘Witness, Frank S. Black, Governor of our said state, at our city of Albany, the fourth day of October, in the year of our Lord one thousand eight hundred and ninety-seven.

‘[Seal.]

Frank S. Black.

‘Passed the secretary's office the 4th day of October, 1897.

‘Andrew Davidson,

‘Deputy Secretary of State.’

Paul Weidmann, the predecessor in title of the defendant Steeplechase Company, on the 2d day of February, 1898, obtained a grant from the commissioners of the land office, the material part of which is as follows:

‘The People of the State of New York, by the Grace of God Free and Independent. To All to Whom These Presents Shall Come, Greeting:

‘Know ye, that we have given and granted and by these presents do give and grant unto Paul Weidmann, his heirs and assigns, the land under water and between high and low water mark described as follows to wit: * * * Containing five and one-eighth acres.

‘Subject, however, to the restriction that the said party of the second part shall not erect or cause to be erected any fences or obstructions of any kind on the land under water as above described that will in any way obstruct or prevent any person or persons from having free and unmolested rights to cross and recross the said land under water between high and low water line as they now exist or as they may exist to the south of the said present high or low water line, but this restriction shall not apply to any of the lands under water which shall at any time be reclaimed by natural causes and building erected thereon.’

In the year 1905 and thereafter the defendant Steeplechase Company erected upon said foreshore and have since there maintained obstructions of many kinds which interfered with and prevented the use of the foreshore by the public. The court found as a fact that the obstructions, naming them, are purprestures and nuisances per se.

It is also found as a fact that for upwards of 100 years last past the plaintiffs have had and now have the right to use the foreshore adjacent to Steeplechase Park at all times for the purpose of bathing, boating, and fishing and the right of passage over such foreshore as incidental thereto. This action is brought to prevent the defendants from interfering with the plaintiffs in their right of passage over and use of such foreshore. Judgment was obtained in the action by which it is ordered and adjudged:

‘That the defendants are enjoined from maintaining the following structures, namely, the fences or barriers at either side of Steeplechase Park, the luncheon pavilion and the platform connecting the same with the pier, the roller coaster and marine horse railway, in so far that these structures or any of them project beyond the present high water line as shown on Plaintiff's Exhibit 12.

‘It is further ordered and adjudged that said defendants make suitable means of free passage and maintain the same under the pier; that the pipe under said pier be raised to a height of at least 7 feet above the beach between high and low water line; that said defendants provide convenient means for passing over or around the landward end of the westerly jetty for foot passengers or vehicles, which passage must be left open for all persons freely to travel over; that the said defendants also make and maintain a suitable and convenient means for passage under Tilyou's Walk by persons on foot and for vehicles at all states of the tide.

‘It is further ordered and adjudged that said defendants forthwith and within 30 days after service upon them or their attorneys of a copy of this judgment, remove the following structures, namely: The easterly boundary fence, the fences upon the westerly jetty, the luncheon pavilion, the platform connecting the same with the pier, the roller coaster and marine horse railway, in so far as these structures, or any of them, project beyond the present high water line as shown on Plaintiff's Exhibit 12; and within said thirty days make a free passage under the pier, raise the pipe underneath it to a height of at least 7 feet above the beach between high and low water line, provide convenient means for passing over the westerly jetty or around the landward end for foot passengers or vehicles and provide suitable and convenient means for passage underneath Tilyou's Walk by persons on foot and for vehicles at all states of the tide.’

An appeal was taken from said judgment by the defendants, other than the defendant Hogg, to the Appellate Division of the Supreme Court, where the judgment was unanimously affirmed, and this appeal is taken from such judgment of affirmance.

The defendants Emilie Huber and George C. Tilyou have died since the commencement of this action, and the executor of the will of each has been substituted in the action in place of such defendants severally. The interest of each has been referred to in this statement, and will be referred to in the opinion as if the original parties had not died.

Hogan, Cardozo, and Seabury, JJ., dissenting.

C. Walter Randall, of New York City, for defendant Huber.

Andrew F. Van Thun, Jr., of Brooklyn, for appellants Steeplechase Park Co. and others.

Egburt E. Woodbury, Atty. Gen. (Robert P. Beyer, Dep. Atty. Gen., of cou...