State v. Knowles-Lombard Co.
| Decision Date | 01 December 1936 |
| Citation | 188 A. 275,122 Conn. 263 |
| Court | Connecticut Supreme Court |
| Parties | STATE v. KNOWLES-LOMBARD CO. |
Appeal from Superior Court, New Haven County; Arthur F. Ells and Patrick B. O'Sullivan, Judges.
Suit for injunction by the State of Connecticut to enjoin the Knowles-Lombard Company from removing sand from beach lying between high and low water mark. From an adverse judgment when defendant refused to plead further after his demurrer to the complaint was overruled, the defendant appeals.
No error.
Arthur B. O'Keefe and Arthur B. O'Keefe, Jr., both of New Haven (Charles A. Pelton, of Clinton, and James M. Kelly, of New Haven, on the brief), for appellant.
Harry L. Brooks, Asst. Atty. Gen. (Edward J. Daly, Atty. Gen., on the brief), for the State.
Argued before MALTBIE, C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.
This action was brought by the State of Connecticut in its sovereign capacity, claiming to hold title to a sandy beach lying between high and low water mark along the southern boundary of the State of Connecticut, upon the waters of Long Island Sound in the town of Madison, and claiming that the defendant, the owner of the adjacent upland, was removing sand from the beach for the purposes of sale without the authority of the plaintiff. The defendant demurred to the complaint, the substance of the demurrer being that it had the right as riparian proprietor to remove the sand, that such removal did not interfere with navigation in the adjacent waters, and that the only right in the State superior to the rights of the defendant as riparian owner was the right of navigation. The precise question raised is whether the defendant, as upland owner, had the right to remove sand from the beach between high and low water mark to be used for trade purposes and not for purposes ordinarily incidental to the enjoyment of the shore. The demurrer was overruled, and the defendant has appealed.
It is settled law in this State that the public, whose representative in the State, is the owner of the soil between high and low water mark upon navigable water where the tide ebbs and flows. East Haven v. Hemingway, 7 Conn 186, 198, 202; Chapman v. Kimball, 9 Conn. 38, 40 21 Am. Dec. 707; Mather v. Chapman, 40 Conn. 382 395, 16 Am. Dec. 46; Shively v. Bowlby, 152 U.S. 1, 20, 14 S.Ct. 548, 38 L.Ed. 331; Rochester v. Barney, 117 Conn. 462, 468, 169 A. 45. The owner of the adjoining upland has certain exclusive yet qualified rights and privileges in the waters and submerged land adjoining his upland. He has the exclusive privilege of wharfing out and erecting piers over and upon such soil and for these purposes of occupying and using it in any manner which does not interfere with navigation, and he may convey these privileges separately from the adjoining land. He also has the right of accretion, and generally of reclamation and the right of access by water to and from his upland. Farist Steel Co. v. Bridgeport, 60 Conn. 278, 283, 22 A. 561, 13 L.R.A. 590; Prior v. Swartz, 62 Conn. 132, 138, 25 A. 398, 18 L.R.A. 668, 36 Am.St.Rep. 333; Barri v. Schwarz Bros. Co., 93 Conn. 501, 506, 107 A. 3; Walz v. Bennett, 95 Conn. 537, 542, 111 A. 834. These rights, which are in the nature of a franchise, constitute a species of property and are separable and alienable as thus separated in the same manner as other property. Simons v. French, 25 Conn. 346, 353; Farist Steel Co. v. Bridgeport, supra, 60 Conn. 278, at page 283, 22 A. 561, 13 L.R.A. 590; Barri v. Schwarz Bros. Co., supra, 93 Conn. 501, at page 506, 107 A. 3. In the exercise of its sovereignty, the State has the power to grant such land for any public use when that can be done without substantial impairment of the public interest and subject to the paramount right of Congress to control navigable waters so far as may be necessary for the regulation of commerce. In so far as a grant for such public purpose has been accepted in the land occupied therefor, the franchise of the riparian owner is ended. New York, N.H. & H. R. Co. v. Armstrong, 92 Conn. 349, 355, 356, 102 A. 791; Brower...
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Kelly v. Ivler
...the plaintiffs' use of the land between the mean high and mean low water marks, there can be no dispute. See Conn. v. Knowles-Lombard Co., 122 Conn. 263, 265 [188 A.2d 275 (1936) ]." The defendants have appealed and claim that the court erred (1) in holding that the plaintiffs have a perman......
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