
    Frederic R. Coudert and Elizabeth Coudert, as Executors of and Trustees under the Last Will and Testament of Frederic R. Coudert, Deceased, Appellants, v. Edward M. Underhill and Others, Highway Commissioners of the Town of Oyster Bay, Respondents.
    
      The fee of the land between high and low-water lines in Oyster bay is rested in the town of Oyster Bay — an upland owner cannot construct a dock thereon — quiere, where the title is in him or the State.
    
    Thg fee of the lands between the high and low-water lines in Oyster bay is vested in the town of Oyster Bay under the provisions of the Andros patent dated September 29, 1677, and the owner of upland bordering on such bay whose title extends only to high-water mark is not entitled, over the objection of the town authorities, to construct a dock extending from his land to the navigable portion of the bay.
    
      Quaere, as to the right of such upland owner to construct and maintain the dock if the title to the land between high and low-water mark be vested in the owner of the upland or in the State.
    Appeal by the plaintiffs, Frederic R. Coudert and another, as executors of and trustees under the will of Frederic R. Coudert, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk .of the county of Nassau on the 25th day of February, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits and dissolving a temporary injunction theretofore granted in the action.
    
      Townsend Scudder [R. W. Kellogg with him on the brief], for the appellants.
    
      George B. Stoddart, for the respondents.
   x Woodward, J.:

Frederick R. Coudert brought this action against the defendants, highway commissioners of the town of Oyster Bay, to restrain them from carrying out a resolution of the town board directing the removal of a dock which the plaintiff had constructed in order that he might reach the navigable portion of Oyster bay from his upland, bounded by' high-water line. Mr. Coudert died during the pendency of the action, and it is continued in the name of his executors and trustees.

Upon the trial of the action at Special Term the- learned court held that ..the fee of the lands between high and low-water lines in front of the plaintiff’s premises was in the town of Oyster Bay under the provisions of the Andros patent, dated September 29, 1617, and if this is a fact there must be an end of the case, for obviously the plaintiff could 'not have the right to trespass upon the premises of the town, of Oyster Bay any more than he could have the right to trespass upon the lands of any other owner of .the fee.This same question was before the court in Trustees of Brookhaven v. Smith (98 App. Div. 212), and we there held that the owner of the upland had no right to trespass upon the property of the town for the purpose of reaching the navigable waters which lay beyond, and we see no reason for changing the opinion there expressed. It is true, of course, that in Thousand Island Steamboat Co. v. Visger (179 N. Y. 206, 210) the broad proposition, resting upon high authority, is made that the proprietors ' of lands upon navigable waters are entitled to the right of access to the navigable part of the river and to the right to make a landing, wharf or pier for their own use or for the use of the public, subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the rights of the public, whatever these may be, but this rule rests upon the assumption that the title to such lands is either in the owner of the upland or in -the State, and- has no reference to a situation where the fee of the soil between high and low-water mark is in an individual or corporation. In such a case the erection of any structure, without the consent of the owner, is a trespass, and to hold that the plaintiff in this action could have the right to trespass, would be to deprive the owner of the fee off an interest in lands without due process of law. The question presented, therefore, is whether the town of Oyster Bay is the owner in fee of the lands between high and low-water mark in front of the plaintiff’s premises, and while it must be admitted that the evidence in support of such title is not as clear and distinct in this case as might be desirable, that question has been at rest so long in this State that it will not be disturbed except upon a very clear demonstration to the contrary.

In Rogers v. Jones (1 Wend. 237, 255) the plaintiff raised the contention that the town of Oyster Bay had no right of property in the lands where certain oysters were taken, because the right of soil beneath the water in the harbor of Oyster Bay never passed by the terms of the patent, and the court passing upon this particular contention, which was essential to a proper disposition of the cause, say: “It cannot be doubted that when a patent or grant conveys a tract of land by metes and bounds, the land under water as well as other lands will pass, if the land under water lies within the bounds of the grant. A contrary doctrine would exclude the lands under the water of lakes and streams not navigable. Scarcely a patent ever issued by this State, that does not include one or the other; and as far as I know, no question has ever been raised on this ground.” This case, though often cited, has never been questioned upon the principle which it asserts in this State. (De Lancey v. Piepgras, 138 N. Y. 26, 36, and authorities there cited.) It is recognized as the law that a grant of lands, described by metes and bounds, carries with it lands under water within those bounds, and it can hardly be doubted that the boundaries described in the Andros patent are broad enough to include the lands between high and low-water mark, as well as substantially all of the waters of Oyster Bay harbor,, where the plaintiff has constructed his dock.

The learned court at Special Term found, likewise, that there was an existing public highway along the shore between high and low-water mark, but in the view we take of this case there is no need of determining this question. The town of Oyster Bay owns the fee of the lands upon which the plaintiff has erected this dock, and the plaintiff can have no standing in a court of equity to prevent the defendants from removing this structure. The town board has ordered the removal, and the defendants, who happen to be the highway commissioners, are acting under the direction of the board as the agents of the town. If there is a highway, and the evidence would justify such a finding, the town is still the owner of the fee of such highway, and it has a right to say that it shall not be used for any purpose other than that of a highway. Likewise, if - the highway exists, the defendants, as highway commissioners, have a right to remove the obstruction, and a court of equity would not be justified in restraining them in behalf of a trespasser merely because they do not technically appear in this action in their official capacity.

We think that this case cannot be distinguished in principle from that of Trustees of Brookhaven v. Smith (supra), and it follows that the judgment appealed from should be affirmed.

The judgment should be affirmed, with costs.

Hirschberg, P. J., Bartlett, Jenks and Rich, JJ., concurred.

, Judgment affirmed, with costs.  