Village of Old Field v. Schuyler

• Decision Date: 21 June 1962
• Citation: 229 N.Y.S.2d 710,16 A.D.2d 496
• Parties: Application of the VILLAGE OF OLD FIELD, the Town of Brookhaven and Catherine C. Willis, Appellants, v. Cortlandt Van Rensselaer SCHUYLER, Commissioner of General Services of the State of New York, and Flax Pond Improvement & Realty Corp., Respondents, For an Order pursuant to Article 78 of The Civil Practice Act.
• Court: New York Supreme Court — Appellate Division

Page 710

229 N.Y.S.2d 710

16 A.D.2d 496

Application of the VILLAGE OF OLD FIELD, the Town of

Brookhaven and Catherine C. Willis, Appellants, v. Cortlandt Van Rensselaer SCHUYLER, Commissioner of General

Services of the State of New York, and Flax Pond Improvement

& Realty Corp., Respondents, For an Order pursuant to

Article 78 of The Civil Practice Act.

Supreme Court, Appellate Division, Third Department.

June 21, 1962.

Whalen, McNamee, Creble & Nichols, Albany (Charles E. Nichols, Albany, of counsel), for appellants.

Irving Waxman, Albany, and William M. Smith, New York City, for respondent, Flax Pond Improvement & Realty Corp.

Louis J. Lefkowitz, Atty. Gen. (Paxton Blair, Sol. Gen., Julius L. Sackman, Ass't Atty. Gen., of counsel), for respondent Schuyler.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and TAYLOR, JJ.

TAYLOR, Justice.

The facts are not in dispute. The question of law presented on appeal is whether the board exceeded the powers conferred by subdivision 5 of section 3 of the Public Lands Law in granting, after notice and a hearing, a license to respondent corporation permitting it to dredge between the jetties of an artificial channel connecting Long Island Sound with Flax Pond, a 100 acre body of shallow water, and to a point in the sound 600 feet beyond their extremities to a depth of 12 feet below mean low water and to remove the sand, gravel and material found in deposit upon the public lands thereunder. The object to be attained by the dredging was to permit the entrance of a dredging barge to the pond for the purpose of deepening it for use by small craft as an adjunct to the residential development of 20 acres of beach land fronting on the sound for a distance of about 2800 feet also owned by the corporation. The inlet was originally cut and the jetties erected by one Childs, its predecessor in title, pursuant to an easement granted by the State in 1942. His barge reached its destination but was destroyed by the hurricane of 1945 whereupon the operation was suspended and never resumed.

The sentence of the statute found by the court below to have empowered the board to issue the license was added by chapter 150 of the Laws of 1946 and reads in pertinent part as follows: 'The board may, in its discretion and upon such terms and conditions, including consideration, as to it shall seem just and proper, authorize the taking of soil from state land under water where such soil is to be taken by an upland owner bordering on state land under water for the improvement or the protection of his upland from the action of the water, or for the restoration, in whole or in part, of his upland where there has been sudden washing away and loss of soil thereof by violent storm and consequent avulsion, but where the title to his land has not been lost, the boundary line remaining the same; * * *.'

Special Term considered the pond to be upland, construed the statute as a grant of power to the board to issue a license for its improvement 'without any 'action of the water' restriction' and found a sufficient nexus between the acts authorized and the improvement to justify the action of the board. We are constrained to disagree with this view of the Legislature's intent. A literal reading of the quoted portion of the statute, its contextual arrangement, the pre-existing regulatory law in the field involved and the storms of hurricane velocity in the year preceding the enactment as a factor giving rise to the legislation--all sound aids for understanding its meaning (3 Sutherland, Statutory Construction, § 6007)--evince the Legislature's purpose only to permit the authority vested in the board to be exercised in respect to the taking of soil from State land under water in Long Island Sound by an upland proprietor for the improvement or protection of his property where necessary to remedy or prevent shoreline erosion arising 'from the action of the water' or to restore the soil of his upland washed away by violent storm and consequent avulsion. In communications to the Governor from the board, the Attorney-General and the Division of the Budget found in the legislative bill jacket...