Town of Hempstead v. Oceanside Yacht Harbor, Inc.

• Decision Date: 14 February 1972
• Parties: TOWN OF HEMPSTEAD et al., Respondents, v. OCEANSIDE YACHT HARBOR, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 894

328 N.Y.S.2d 894

38 A.D.2d 263

TOWN OF HEMPSTEAD et al., Respondents, v. OCEANSIDE YACHT HARBOR, INC., Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 14, 1972.

Lapp, Schacher & Bradie, Cedarhurst (Charles E. Lapp, Jr., Cedarhurst, of counsel), for appellant.

George C. Pratt, Mineola, Special Counsel to Howard E. Levitt, Town Atty., Town of Hempstead, for respondents.

Before HOPKINS, Acting P.J., and SHAPIRO, GULOTTA, CHRIST and BENJAMIN, JJ.

HOPKINS, Acting Presiding Justice.

By colonial grants the plaintiffs are the owners of the land under water adjacent to the upland owned by the defendant, bordering East Rockaway Channel. On the upland is a bulkhead from which ramps, rising and falling with the tide, are attached to floating docks. Mooring slips, also known as fingers, extend from the floating docks and are rented to the defendant's customers.

The plaintiffs sue to recover the reasonable rental value of the use and occupation of their land under water by the defendant in the operation of its business as a marina. The plaintiffs' theory is that the defendant, through the construction of the mooring slips, has ventured beyond the traditional riparian rights of an upland owner to such a degree as to trespass on the rights of the plaintiffs. The defendant in response claims that the riparian rights include the installation of docks, floats and mooring slips above the plaintiffs' land under water, for which use the defendant need not pay any compensation.

The Special Term, trying the case on the issue of liability alone, found in favor of the plaintiffs and directed an assessment of damages. The opinion of Special Term held (64 Misc.2d 4, 9, 311 N.Y.S.2d 668, 674) that 'the Town may not charge for rents for its underwater lands in the instance of docks and floats which are primarily for access from navigable waters to upland property, but the Town may charge the upland owner for use of the Town's underwater lands for docks and floats and other installations maintained there as distinct activities in their own right.' We are unable to agree with the conclusion of the Special Term; and we reverse the resettled interlocutory judgment, direct dismissal of the amended and supplemental complaint, and grant judgment to the defendant upon its counterclaim.

The defendant, as an upland owner, has a right of access to and from the channel over the plaintiffs' foreshore (Town of Brookhaven, Trustees of Freeholders & Commonalty v. Smith, 188 N.Y. 74, 80 N.E. 665) and that right follows the entire frontage of the defendant's property (Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 136 N.E. 224). The right of access comprehends the reasonable, safe and convenient use of the foreshore for navigation, fishing and such other purposes as commonly belong to the riparian owner, exercised in a reasonable manner (Tiffany v. Town of Syster Bay, Supra, p. 21, 136 N.E. p. 225). The scope of what is a reasonable, safe and convenient use of the upland owner's riparian rights has been grandually defined on a case to case foundation.

Thus, it is clear that the right includes the power to build a pier, dock or wharf for the upland owner's use or for the use of the public (Saunders v. New York Cent. & Hudson Riv. R.R. Co., 144 N.Y. 75, 87,38 N.E. 992, 995; Rumsey v. New York & New England R.R. Co., 133 N.Y. 79, 30 N.E. 654) or more than one pier or dock (Barnes v. Midland R.R. Term. co., 218 N.Y. 91, 97--98, 112 N.E. 926, 928--929). Moreover, the right of access may be shared with others intent on crossing the land under water for purposes unrelated to the use of the upland (City of New York v. Third Ave. Ry. Co., 294 N.Y. 238, 244, 62 N.E.2d 52, 54). But the right of access cannot be expanded beyond the purpose denoted by the term 'access'--for example, the exercise of the right does not extend to purposes extrinsic to commerce and navigation, such as the operation of a restaurant (Matter of City of New York (Neptune & Emmons Aves.), 280 N.Y. 604, 20 N.E.2d 557), amusement parks (People v. Steeplechase Park Co., 218 N.Y. 459, 113 N.E 521) or a plant for processing meat (City of New York v. Wilson & Co., 278 N.Y. 86, 15 N.E.2d 408). Nor may the right be used so that public navigation is impeded (Town of Brookhaven, Trustees of Freeholders & Commonalty v. Smith, 188 N.Y. 74, 87, 80 N.E. 665, 670, Supra).

Se must therefore look to the character and size of the defendant's activities on the land under water to determine whether under the circumstances they represent a reasonable exercise of its right of access. The evidence as to those activities is substantially undisputed. Thus, it was stipulated that the defendant 'operates a marina on its upland, and in connection with that has nine floating docks which extend into East Rockaway Channel up to 100 feet, and that these docks are held in place or secured into place by piles which are driven into the land under water' and that 'in October 1961 the Department of the Army issued a permit for the construction of 17 floats * * * to extend up to 100 feet into the waters of East Rockaway Channel.' The marina provides repair service and gasoline, as well as storage for boats during the winter. The floating docks accommodate about 150 boats at mooring rental.

The Special Term found...