
    Florence Bourne Hard, Respondent, v. The Blue Points Company, Appellant.
    Second Department,
    December 24, 1915.
    Waters and watercourses—riparian rights — obstruction of access to waters of Great South bay — injunction —special damage.
    The owner of lands abutting on a public street in the village of West Say-ville, which street leads to the waters of Great South bay, is entitled to a right of ingress and egress from and to the waters of the bay where they meet the highway at high-water mark. Hence, as a riparian owner she is entitled to an injunction requiring an oyster company, which has acquired the ownership of lands under said waters, to remove structures erected upon piles which obstruct the exercise of said riparian rights.
    Such riparian owner, who has also title to the middle of said street and extending to high-water mark, suffers special injury different from that of the general public which entitles her to an injunction.
    The requirement to show special injury in such case does not call for the proof of such exact amounts as might be necessary to a recovery in an action for damages.
    A mandatory injunction to compel the removal of such obstruction will issue even though the defendant has invested large capital in its enterprise and will suffer loss.
    Appeal by the defendant, the Blue Points Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 25th day of March, 1915, upon the decision of the court after a trial at the Kings County Special Term.
    The judgment awarded plaintiff a mandatory injunction commanding defendant to remove its oyster plant from the foot of a highway known as West street, at West Sayville, in the town of Islip, L. I.
    
      Asa A. Spear, for the appellant.
    
      Joseph Wood, for the respondent.
   Putnam, J.:

Defendant’s ownership of lands under water in Great South bay did not enable it to obstruct the foot or southern extremity of West street in West Sayville, L. I. From this street the public (and specially the plaintiff, as an abutter on the street down to the high-water line) had a right to pass out to the navigable waters of the bay, and back from the bay landwards to the street, which right of ingress and egress extended over the place where the land highway meets the navigable waters. (Matter of City of New York [Main St.], 216 N. Y. 67.) Though defendant’s structures stood on piling upon lands under water, they appropriate common property, as they tend to stop this free continuous passage, and are, therefore, actionable. Plaintiff, as a riparian owner, and also having title to the middle line of West street, along which her lands extend to high water, has shown such special damage in the nature of substantial and peculiar injury different from that of the general public as entitles her to an injunction. (Joyce Inj. § 1082a.) The requirement to show special injury and loss does not call for such exact amounts as she might have to prove in an action to, recover damages. (Wakeman v. Wilbur, 147 N. Y. 657; Ackerman v. True, 175 id. 353.) The fact that defendant has large capital here invested, so that it will sustain loss by having to withdraw its encroachment, does not justify the trespass or warrant withholding an injunction. (Whalen v. Union Bag & Paper Co., 208 N. Y. 1.)

The judgment is, therefore, affirmed, with costs.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Judgment affirmed, with costs.  