
    Sarah H. Barnes and Others, Appellants, Respondents, v. Midland Railroad Terminal Company, Respondent, Appellant.
    Second Department,
    May 1, 1908.
    Real property—riparian rights—nuisance — obstruction of highway— injunction.
    An owner of the upland on the shores of New York bay has a right to exclude the public from the use of the dry land lying between high and low-water mark in front of his premises.
    Where defendant holds lauds under water, occupied by a pier, by letters patent from the State on condition that it shall not obstruct the passage of the public across the land between high and low-water mark, an action by an individual to preserve to the public by injunction the right to use the land as a highway does not lie, since the condition was not intended to reserve to the public a right it did not possess.
    The State alone can bring such an action.
    A pier not interfering with navigation or with any authorized public use of the water is not a nuisance.
    A landowner who has suffered special damage by the construction of a building in a public highway so as to prevent its use by the public at the places of such encroachment, and by the discharge of sewage on his premises, is entitled to an injunction and to recover the damages sustained.
    Cross-appeals by the plaintiffs, Sarah II. Barnes and others, and by the defendant, the Midland ¡Railroad Terminal Company, from parts of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 26tli day of June, 1906, upon the report of a referee.
    This action is brought to perpetually enjoin the defendant, first, from maintaining certain of its buildings and structures in a public highway called the Sea Side boulevard, and from erecting structures therein in any manner interfering with the passage of the plaintiffs and the public generally along said highway; second, from maintaining its pier in such manner as to interfere with or obstruct the convenience of persons in passing over the land thereunder lying between high and low-water mark; third, from using any sand pump, and from pumping sand in any way in violation of the statutes or the plaintiffs’ rights ; fourth, from pumping or dumping sand upon a highway known as Red lane ; fifth, from causing water to flow upon the beach abutting its land between high and low-water mark; 
      sixth, from doing anything which shall prevent, obstruct or interfere with the convenience of persons desiring to use the land between high and low-water mark as a means of passage to and from plaintiffs’ premises; seventh, from casting or permitting to flow sewage upon plaintiffs’ premises, and eighth, for an accounting to ascertain plaintiffs’ damages sustained through defendant’s wrongful and unlawful acts.
    The facts found by the learned referee are abundantly sustained by the evidence. Upon them he found as conclusions of law:
    
      “First. That the acts of the defendant in building and maintaining its pier, and in the construction of a shed on the platform adjoining the bulkhead at Red Lane and in building the trestles to its sand-bin at the foot of Red Lane and in its operation of the same ■—■ although by such acts the public were and are prevented from having free passage to Woodland Beach over the platform and over the beach between high and low water mark; and although its pier is built and maintained in violation of the conditions in the grant to it from the State of the lands under water — are not such as entitle the plaintiffs or either of them to relief. There being no right in the public to pass over the beach between high or low water mark and the State alone having the right to enforce the conditions on which the grant was made.
    “ Second. That the plaintiffs are entitled to judgment granting the following relief:
    “I. Perpetually enjoining and restraining the defendant
    
      “ (1) From maintaining any building, sluice-way or structures of any bind within the limits of said Boulevard, unless it provides an equivalent, by constructing a road seventy feet wide, in good condition for public travel, between the terminal station of the trolley railroad and Red Lane at the point where the latter crosses the Boulevard, and dedicating the same to public use.
    
      “ (2) From causing or permitting any sewage to flow into the ditch forming the southeasterly boundary of plaintiffs’ salt meadow land.
    
      “ Third. That the jflaintiffs, or either of them recover such damages as they, or either of them, may be found upon an accounting thereof to have sustained by reason of the acts of the defendant against which relief is hereby granted, and that it be referred to a referee to ascertain and report to the Court the amount of any damage so sustained by the plaintiffs, or either of them.”
    
      John, Brooks Leavitt [Stuart G. Gibboney and Albert II. Atterbury with him on the brief], for the plaintiffs.
    
      William J. Martin [Lawrence W. Widdecombe with him on the brief], for the defendant.
   Rich, J.:

The plaintiffs appeal from so much of the interlocutory judgment entered on the report of the referee as adjudges that they are not entitled to an injunction against acts of the defendant preventing the passage of the public over that portion of its beach lying between high and low-water mark, and the defendant appeals from so much of said judgment as grants to the plaintiffs any relief, and appoints a referee to ascertain and report the damages sustained by the plaintiffs, or either of them.

The question here presented by plaintiffs’ appeal is that of the right of the general public to use the land between high and low-water mark, on the shores of lower New York bay, as a highway, and is not at all analogous to the rights of the owners of the upland to use such portion of the beach for the purpose of gaining access to the waters opposite their land or to such portion of said waters as is navigable, by means of a pier or dock, which is the subject of decision in many of the cases to which our attention is directed. The common law of England upon this subject was clearly defined as late as 1904 in Brinckman v. Matley (L. R., 2 Ch. Div. 313 [1904] ; affd. on appeal, id. p. 321), as follows: By the common law all the King’s subjects have in general a right of passage over the sea with vessels for the purposes of navigation and have, prima facie, a common of fishery there, and they have the same rights over that portion of the sea which lies over the foreshore at the times when the foreshore is covered with water. But when the sea recedes and the foreshore becomes dry there is not, as I understand the law, any general common-law right in the public to pass over the foreshore.” The legal right of the owner of the upland to exclude the public from the use of the dry land lying between high and low-water mark has been maintained by our courts in Nolan v. Rockaway Park Imp. Co. (76 Hun, 458); Town of Brookhaven v. Smith (188 N. Y. 74); Rumsey v. N. Y. & N. E. R. R. Co. (133 id. 79); Matter of City of New York (168 id. 134); Wetmore v. Atlantic White Lead Co. (37 Barb. 70); Whittaker v. Burhans (62 id. 237); Ledyard v. Ten Eyck (36 id. 102); Sisson v. Cummings (35 Hun, 22). Although the last cited case was reversed (106 N. Y. 56), it was upon a preliminary question, and the principle therein decided as applicable to the case at bar was not disturbed.

It is said in Barnham on Waters (p. 656): “ The shore of the sea below high water mark, whether the title is in the public or in the riparian owner, is not a highway for public travel upon foot or with vehicles.”

The defendant is a riparian owner, in which the title to the land occupied by its pier in front of its upland and under water, is vested by letters patent from the People of the State of Hew York. But it is contended that because of the condition contained in said letters patent— that it should not obstruct the passage of the public in crossing or recrossing the land between high and low-water mark — this action to preserve to the general public the right to use the land lying between high and low-water mark as a highway for travel along the shores of the bay is maintainable. While this view may seem to be warranted by the broad language of the grant, wre do not think that it was intended to reserve to the public a right it did not possess and was not, as against the defendant, entitled to. If the construction contended for should prevail, the State, as trustee for the public, would have the right, without compensation to the riparian owners, to construct a highway upon and over the laud upon the beach lying between high and low-water mark, which the Court of Appeals in Matter of City of New York (supra) expressly held could not be done.

It is unnecessary, however, to give further consideration to this question as the action is not brought by the People to preserve and enforce their rights in the beach, but by adjoining riparian owners to prevent the defendant from obstructing the access of persons from the defendant’s place of amusement to that of the plaintiffs, and for damages. It is well settled that such an action may be maintained by the State alone. (Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382, 388; Archibald v. N. Y. C. & H. R. R. R. Co., 157 id. 574; White v. Nassau Trust Co., 168 id. 149; Saunders v. N. Y. C. & H. R. R. R. Co., 144 id. 75; New York Central & H. R. R. R. Co. v. Aldridge, 135 id. 83; City of Brooklyn v. Mackay, 13 App. Div. 105.) It is not shown that the defendant’s pier in any manner interferes with navigation or with the use by the public, for any authorized purpose, of the waters of the bay so that it is not a nuisance. (Delaware & Hudson Canal Co. v. Lawrence, 2 Hun, 163; affd., 56 N. Y. 612; Jenks v. Miller, 14 App. Div. 480; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; People ex rel. Howell v. Jessup, 160 id. 249 ; Kerr v. West Shore R. R. Co., 127 id. 269.)

The defendant’s contention upon its appeal is without merit. The learned referee has found upon sufficient evidence that it has constructed some of its buildings in a public highway, preventing its use by the public at the places of such encroachment, as the result of which plaintiffs have sustained special damages in the loss of patronage at their summer resort, together with the discharge of sewage upon plaintiffs’ premises, which entitle them to the relief granted by the interlocutory judgment.

The exceptions present no reversible error, and the interlocutory judgment must be affirmed, without costs to either party.

Woodward, Jerks and Gaynor, JJ., concurred; Hooker, J., concurred in result.

Interlocutory judgment affirmed, without costs.  