Town of Hempstead v. Oceanside Small Craft Marina Inc.

• Decision Date: 24 June 1970
• Parties: TOWN OF HEMPSTEAD and the Town Board of the Town of Hempstead, Plaintiffs, v. OCEANSIDE SMALL CRAFT MARINA INC., and Oceanside Yacht Harbor, Inc., Defendants.
• Court: New York Supreme Court

Page 668

311 N.Y.S.2d 668

64 Misc.2d 4

TOWN OF HEMPSTEAD and the Town Board of the Town of Hempstead, Plaintiffs, v. OCEANSIDE SMALL CRAFT MARINA INC., and Oceanside Yacht Harbor, Inc., Defendants.

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

June 24, 1970.

[64 Misc.2d 5] Howard E. Levitt, Town Atty., for plaintiffs, George C. Pratt, Mineola, Special Counsel.

Lapp, Schacher, & Bradie, Cedarhurst, for defendant, Oceanside Yacht Harbor, Inc.

MEMORANDUM

BERTRAM HARNETT, Justice.

Can the Town of Hempstead require a commercial marina operator to pay rent for piers, pilings and floats maintained on Town underwater lands? Does it matter if the installations are primarily used for access to the marina property upland? Suppose the operator conducts a dock rental business on the Town-owned portions?

Oceanside Yacht Harbor, Inc. (called 'Yacht Harbor') owns about 900 feet of frontage on the banks of East Rockaway Channel, a navigable waterway. The land under those tidal waters belongs to the Town of Hempstead, which derives its title from colonial patents.

Yacht Harbor's property is zoned for business use and, for approximately ten years, has been used as a commercial marina. Its docks extend from Yacht Harbor's property line out into East Rockaway Channel for distances up to 100 feet. The marina can accommodate about 150 boats for docking rental, 20 boats moored in slips on Yacht Harbor's side of the high water mark, which may be deemed the defendant's own property, and 130 boats moored on the Town's side of the property line. Most of the boats are in the water only from April 30th to November 1st of each year.

Yacht Harbor's docks are of the floating variety, being underlined with a buoyant material to enable them to stay above water, and are secured into place by piles driven into the land under water. When the docks are in place, the unobstructed width of East Rockaway Channel is about 175 feet at the northerly end of the Yacht Harbor property and about 350 feet at the southerly boundary. Without dispute, passage on the navigable portion of the waterway is not interfered with by Yacht Harbor's docks. No claim is made of any public disruption.

In 1960, the Town Board of the Town of Hempstead enacted Resolution No. 755--1960, ostensibly pursuant to Ordinance No. 39--1958, authorizing a permit to Yacht Harbor's predecessors to maintain docks on condition that they enter into a lease with the Town for any use of the Town land under water. Yacht Harbor refused to enter into the lease and insists upon its right to maintain its docks upon the Town-owned land under water without payment of rent. The Town, on the other hand, seeks to hold Yacht Harbor liable for reasonable rentals and asks for an adjudication of its right to require a lease for the use of the underwater lands.

While the Yacht Harbor marina has been in operation for about ten years, using Town-owned underwater lands, without complying with the leasing condition of its permit, the Town has not appeared to have moved against its continued operation. Even in this proceeding, the Town does not rely on any claim of any imperfect permit compliance. Rather, the Town now sues Yacht Harbor for the fair rental value of its underwater lands as a simple property matter, also demanding repossession if a lease on reasonable terms is not executed. It argues that under Article VIII, Section 1, of the New York State Constitution, it cannot give away any of its property to private corporations, and that under Section 300 of the Nassau County Civil Divisions Act, it has the authority to lease 'common lands'. Yacht Harbor defends that by virtue of its riparian rights it is using what is lawfully its own and the Town cannot charge for it.

From the statement of the parties and the testimony, it is clear that this is a 'test case' designed to test the Town's ability to charge rents to marina operators using Town underwater lands for footings for their pier, dock and float installations. In view of the increasing boating uses of today, the issue is not of small importance.

Although the Town is the owner of the land under water, it does not possess all the interests which exist in the property, since its 'ownership' is subject to the legal rights of others. Regardless of who owns legal title to the underlying land, a navigable waterway is a form of public highway. Macrum v. Hawkins, 261 N.Y. 193, 184 N.E. 817. Property rights arise as a result of ownership of the land on the banks of such a waterway, which are known as riparian rights. These are in general rights to use the waterway and to have access to it and its navigable portions. City of New York v. Wilson & Co., 278 N.Y. 86, 15 N.E.2d 408. These rights are not merely easements, Lawrence v. Behncke, Sup., 150 N.Y.S.2d 494, but are incident to the right of property on the banks of the water. Smith v. Brooklyn, 160 N.Y. 357, 54 N.E. 787. They are inherent in ownership of the adjacent upland. United Paperboard Co. v. Iroquois Pulp & Paper Co., 226 N.Y. 38, 123 N.E. 200.

In Trustees of Freeholders & Commonalty of Town of Brookhaven v. Smith, 188 N.Y. 74, 80 N.E. 665, the upland owner had erected a pier upon land under water in Great South Bay, owned by the Town of Brookhaven under some of the same patents as granted the land to the Town of Hempstead. The Town sought to bar the pier since it was erected without its permission. The Court of Appeals noted that:

'In this Country it has generally been held that the upland owner has the additional right of constructing a proper pier or landing for the use of himself and the public * * * (Yates v. Milwaukee, 10 Wall. 497, 19 L.Ed. 984), and since the decision in Rumsey v. N.Y. & N.E.R.R. Co., (133 N.Y. 79, 30 N.E. 654), that is the rule in this state'. Town of Brookhaven v. Smith, Supra, at p. 84, 80 N.E. at p. 668--669, citing Jenks v. Miller, 14 App.Div. 474, 43 N.Y.S. 927, and City of Brooklyn v. Mackay, 13 App.Div. 105, 42 N.Y.S. 1063.

The Court of Appeals further noted 188 N.Y. at page 87, 80 N.E. at page 670, that the upland owners:

'* * * have simply made their right of access practical. It is a general rule that when the use of a thing is granted, everything is granted by which the grantee may enjoy such use. By analogy, we may reason that the riparian owner's right of access to the navigable waters in front of his upland comprehends, necessarily and justly, whatever is needed for the complete and innocent enjoyment of that right'.

The Court of Appeals continued this view of riparian rights fifteen years later in Hinkley v. State, 234 N.Y. 309, 137 N.E. 599.

Another fourteen years later, the question was discussed in Matter of Del Balso Holding Corp. v. McKenzie, 271 N.Y. 313, 3 N.E.2d 438. The petitioner there was an upland owner who desired to construct piers on land under water in Westchester Creek, for which the City of New York sought to exact rent. In view of...