United States v. Banister Realty Co.

• Decision Date: 09 May 1907
• Citation: 155 F. 583
• Parties: UNITED STATES v. BANISTER REALTY CO. et al.
• Court: U.S. District Court — Eastern District of New York

155 F. 583

UNITED STATES v. BANISTER REALTY CO. et al.

United States Circuit Court, E.D. New York.

May 9, 1907

William J. Youngs U.S. Atty.

Hirsh &amp Rasquin, for defendants.

CHATFIELD District Judge.

Far Rockaway Bay is an ever-varying salt water and tidal indentation in the southern coast line of Long Island. Upon the latest United States government charts it is called the 'Bay of Far Rockaway,' separated from the Atlantic Ocean proper by a strip of land, designated 'Far Rockaway Beach,' and connecting with the ocean by an inlet called 'Little Inlet.' To the eastward on the chart lies a similar strip of shallow salt water, and this, in turn, by various bays, inlets, and larger indentations, connects directly with the broader and much deeper Great South Bay. The entire surface and waters of Long Island are included within the Eastern district of New York. Along the south shore of the Island runs a series of bars and strips of sand in some places forming a substantial beach, and in others consisting merely of shoal water in front of the main land at a greater or less distance therefrom. These beaches and bars constantly shift, and, as will be shown later, extreme and frequent as well as violent changes have occurred in the beach in front of the water called the 'Bay of Far Rockaway' on many occasions during the past century.

At the present time, the condition of the locality called the 'Bay of Far Rockaway' is very different from that shown on the government charts, and not only has the tidal portion been materially reduced in extent, but Little Inlet seems now to have no connection with the Bay of Far Rockaway. The eastern portion of the bay has entirely disappeared, and the mainland and the former beach are directly connected by a dry section of sand. A new inlet, smaller in many ways than the Little Inlet shown upon the charts, has been forced through the beach, at one point and then at another, with a general tendency to work westerly, thereby shortening the extent of the Bay of Far Rockaway, and increasing the amount of the solid mainland immediately east of the inlet. As shown by the moving papers herein, some seven bridges on trestles at heights varying from five to six feet above the level of high water, have been built across the water now comprising this bay. These bridges have no draws, and no permit has been obtained from the War Department for their erection, with the exception of one, the second bridge counting from the east. For this bridge a permit was granted by the War Department, on July 16, 1895, allowing the erection of a trestle with a draw. The statement upon which the application for this permit was made is as follows:

'To the Honorable Secretary of War, Washington, D.C.-- Dear Sir: The Ocean Causeway Company propose to build a causeway and bridge across Far Rockaway Bay to connect Hicks Beach, Long Island, with Shelter Island, New York, for the purpose of giving to the residents of that locality access to said island with vehicles. The depth of water in the channel way where it is proposed to erect this bridge varies from one to four feet at mean low water, and the proposed draw span in the new bridge of at least thirty-five feet in the clear, will make navigation in the neighboring waters unobstructed. We therefore respectfully request that you will grant us authority to build said bridge and causeway subject to any conditions you may deem proper to impose. Accompanying this is a plan of the bridge and drawings showing its location.

Very respectfully,

Geo. C. Rand, Prest., '107 Wall St., New York.'

It further appears from the moving papers (affidavit of James Stillwaggon, verified March 18, 1907) that in 1903 this draw was closed and permanently fastened, during the course of rebuilding by the defendant corporation.

Through the access gained by these bridges a substantial use of the beach for bathing purposes has been made possible, and large bath houses have been erected. Recently the defendant the Banister Realty Company applied to the War Department for a permit to pump sand from the Atlantic Ocean, for the purpose of filling in to the north and east of the Bay of Far Rockaway, on certain territory owned by the company, and such permit was granted in the following language:

'Referring to your application of March 31st, last, for permission to dredge sand from the Atlantic Ocean, at Far Rockaway, Long Island, N.Y., also to fill in land of the Banister Realty Company at that place, the area to be filled in being shown in red on blue print submitted, I beg to inform you that the War Department will interpose no objection to the proposed work, it being understood that there shall be no unreasonable interference with navigation thereby, that suitable provision shall be made to prevent the escape of the dredged material into Far Rockaway Bay and Mott Creek, and that this action does not authorize any injury to private property or invasion of private rights nor any infringement of local and state laws or regulations.

'Very respectfully,

Robert Shaw Oliver, 'Assistant Secretary of War.'

A pumping station was erected east of the location of the present inlet, outside of low-water mark, and the sand was piped over one of the bridges above mentioned and deposited on the mainland. The action of the storms, forcing the inlet gradually westward, undermined the pumping plant, and pierced the beach at a point just west of the pumping station, and almost in the exact spot where, some years ago, two bulkheads were constructed for the purpose of protecting the beach from the encroachments of the ocean. Part of the bulkheads were washed away, and the present inlet formed. This the defendants claim is in the neighborhood of 30 feet wide and 1 foot deep at low water, and 85 feet wide and 2 feet deep at high water, on an average, and is plainly shown on the photograph, Defendants' Exhibit M, March 16, 1907; the bath houses shown in this picture being to the west of the inlet. The piercing of the inlet at the present location occurred about January, 1907, and the defendant company proceeded to drive a line of piling, and to reinforce the same by bags of sand, between the two lines of old bulkhead and directly across the inlet. At the time of driving the piling, this inlet was the only place in which the tide ran in and out to the section called the 'Bay of Far Rockaway,' and, as is shown by the chart submitted by the defendants, the water in the bay at high tide is never as high as in the ocean; the inlet not now being of sufficient capacity to allow the bay to fill up to the ocean level during the period of any flood tide.

The present action was brought by the United States to effect the removal of this piling, and the plaintiff also obtained an order to show cause why an injunction pendente lite should not issue.

At the various points at which cross-sections have been taken, as shown by the defendants' map No. 1,875, surveyed March 20, 1907, this body of water called the 'Bay of Far Rockaway' is from 1 to 2 feet deep in the sections measured. As shown by the affidavits, the present bay is not only growing shallower, but, from the encroachments of the beach at the easterly end, and the building up of improvements on the mainland at the westerly end, it is filling in rapidly and becoming smaller in extent. The bridges above referred to are shown by photographs introduced by the defendants. A small sail boat, of a size suitable substantially for pleasure only, and almost within the class of a rowboat or skiff, is pictured near one of the bridges, resting upon the mud. A man beside the boat is in water not much above his ankles, indicating the depth of the water at the point where one of the largest bridges crosses.

A further examination of the affidavits submitted on behalf of the defendants, and of the charts accompanying these affidavits, shows that a record exists from as far back as 1802, when the beach as a whole, for a considerable distance east and west of the locality under discussion, extended in an unbroken stretch far to the south (that is, out in the ocean) from the present low-water mark. The first opening in this beach seems to have been Hog Island Inlet, which enters what is called 'Broad Channel' and several bays forming the westernmost of the indentations directly connecting with Great South Bay. In 1836 the coast line had not changed, unless to work inland to a slight extent; but in 1862, 1863, and 1864 this solid beach was entirely washed out, and apparently the different portions of tidal water of Far Rockaway Bay date from that time. The various bars and beaches between the Bay of Far Rockaway and the Atlantic Ocean have been built up, and have shifted and changed continuously down to the present time. At all times, however, since 1864, there has existed some beach or bar between the Bay of Far Rockaway and the Atlantic Ocean, and the limits of the bay have been more or less distinct. In 1879 the beach itself was far to the south of where it is now and much wider in extent. The bay, also, was then several times larger than at present. Hog Island Inlet, of which mention has been made, has shifted to the west and to the east of where it was at the beginning of these records, but is now not far from the original locality. In 1896, and again in 1900, the shifting of the beach and the cutting of a new inlet began to narrow the bay, threatening its complete destruction, unless the filling in from the northward and eastward is halted, or unless the mainland is further washed out by the action of the ocean.

At various points to the west, the north, and the east of the present bay, improvements in the way of buildings, roads, and docks have not only protected the mainland,...