
    Rudolph Oelsner, Respondent, v. The Nassau Light and Power Company, Appellant.
    Second Department,
    October 12, 1909.
    Waters and watercourses — lands beneath navigable waters — rights of riparian owners — injunction — when riparian owner cannot restrain the erection of poles between low and high-water marks — rights of State and Federal governments.
    The owner of uplands abutting upon the harbors of Long Island Sound has no proprietary rights by virtue of such ownership in lands below the high-water mark unless vested therewith by royal charter or by grant from the State. As a riparian owner he has only an easement which includes a right of access and egress to the open waters, said easement being subject to the public right of passage and to the right of dominion in the State and Federal governments in aid of navigation.
    
      Hence, where a town having title to lands below the high-water mark has granted to an electric light company the right to erect and maintain poles on the shore between the high and low-water marks, the adjoining owner of uplands cannot compel the removal of the poles without showing some substantial interference with his easements as a riparian owner.
    At common law the king had title as proprietor to lauds under navigable waters, while the riparian owner had a right of access over them to the water.
    Any structure erected by the riparian owner to utilize said right was a purpresture, an invasion of the king’s proprietary right; but it was a public nuisance only when it interfered with navigation.
    The king had a right of dominion over such lands held in trust for the public in aid of navigation which he was powerless to alienate. This dominion after the Revolution vested in the States subject to the right surrendered to the Rational government. So, too, the king’s proprietary rights vested in the States except as alienated by royal charter to the original proprietors, who, however, took in trust for communities established or to be established.
    Hence, the title which the king held as proprietor is now in the successors or grantees of the original proprietors or in the State or its grantees.
    The English rule that a riparian proprietor on navigable waters could not make use of his right of access by the construction of a wharf is inapplicable to our changed conditions.
    By statute the owners of uplands abutting upon navigable waters have a right of pre-emption though the Legislature may grant title to others. But where an owner of adjoining uplands is vested with title to lands below the high-water mark, either by royal or State grant, he is not vested with the right of dominion for the purposes of navigation, but merely with the proprietary rights of the king as modified by our changed conditions. All grants of such lands under water are impliedly made subject to the superior right held in trust for the public —the right of dominion in aid of navigation.
    Appeal by the defendant, The Nassau Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Nassau on the 22d day of July, 1908, upon the report of a referee.
    
      Henry A. Uterhart, for the appellant.
    
      Charles I. Wood, for the respondent.
   Miller, J.:

The plaintiff is the owner of certain uplands including a part of what is known as Bar Beach in the town of North Hempstead) abutting on the shore of Hempstead harbor, an arm of Long Island Sound. Bar Beach is a narrow, sandy beach, extending eastward from the west side of and into the harbor. The defendant is an electric light corporation, organized under the Transportation Corporations Law, and supplies electricity to private consumers and for the lighting of streets under contract with the town of North Hempstead. Pursuant to permission granted by that town, it has constructed and maintains on the southerly side of Bar Beach between high and low-water mark a line of poles and the necessary wires and appurtenances. There are seventeen or eighteen of these poles in front of the plaintiff’s uplands, set one hundred feet apart. The poles are thirty feet high and one foot in diameter. Each has two cross amis about six or eight feet long, carrying three wires, the lower being twenty-seven feet above the ground. Each wire carries 6,000 volts of electrical energy. This action is brought to restrain the defendant from maintaining said poles and wires, and the appeal is from a jndgmént in favor of"the plaintiff.

The action is brought, and ivas decided by the learned referee, on the theory that the plaintiff, as the, owner of the uplands, is entitled to the exclusive occupancy of the tideway, subject only to the rights of the State or town and to the right of the public to the use thereof in aid of navigation. The plaintiff testified that the erectian of these poles has not so far in any way interfered with the access to the use of the beach,” and it is not very plain from his testimony that the poles with the wires upon them will interfere with any use which he contemplates making or which it is practicable for him to make of the southerly side of the beach. There is a finding of fact that the plaintiff has sustained damages in the sum of six cents by the erection of said poles and the stringing of wires, but there is no finding of fact that the plaintiff’s right of access to the navigable waters in front of his uplands has been or will be interfered with by the presence of said poles and wires. The seventh conclusion of law is “ That the entry upon said foreshore by the said defendant and the erection of its poles, cross-arms and the stringing of its wires thereon interferes with the said right of access vested in the plaintiff and constitutes a trespass against the plaintiff.” Manifestly, that finding xvas intended to be what it is labeled, a conclusion of law. While not finding as a fact that the .poles and xvires interfere xvith the plaintiff’s access, the referee concludes as matter of laxv that anything constructed or erected on the foreshore except in aid of navigation, constitutes a trespass upon the plaintiffs rights.

The rights of the riparian owner, the sovereign and the public to the land between the high and low-water marks have been the subjeet of much historical research and learned discussion, and it would seem that those rights ought to be precisely defined and limited. However, it appears that the precise rights of the riparian owner have not yet been defined by judicial authority in this State. The decisions in Town of Brookhaven v. Smith (188 N. Y. 74) and Barnes v. Midland R. R. Terminal Co. (193 id. 378) have been construed by an able and careful judge as holding that the complete title, subject to the rights of the public, is in the owner of the uplands. (See Bardes v. Herman, 62 Misc. Rep. 428.) I do not think that the Court of Appeals intended to announce any such doctrine. In view of the exhaustive and able opinions written in Town of Brookhaven v. Smith (supra), it would be a work of supererogatian, which I shall not attempt, to discuss the authorities or the historical development of the law on this subject. Both of the opinions in that case, as I read them, agree upon the following propositions: According to the common law'of England, the king as proprietor had title to the lands under water; though the riparian owner had a right of access over them to the navigable waters, any structure erected by him to utilize that right was a purpresture, an invasion of the proprietary right of the king, it was a public nuisance only when it interfered with navigation'; as sovereign, the king had the right of dominion ov-er such lands in trust for the public in aid of navigation, which he was powerless to alienate, and which, after the Revolution, vested in the States, subject to the rights surrendered to the national government; his rights as proprietor likewise vested in the States except as they had been granted by royal charter to the original proprietors who, however, took them in their corporate capacity in trust for the communities established or to be established. The title which the king held as proprietor, therefore, is now in the successors or grantees of the original proprietors or in the State or its grantees. It must follow, then, that the riparian owner as such has no title to the lands under water. It is true that the prevailing opinion of Judge Gray quotes from Gould on Waters- as follows: “ There is no evidence that the j us privatum * * * was ever asserted in the colony as a right of the Crown, or that it has, until recently, been claimed by the State; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the adjoining land from the first settlement of the province and exercised by them to the present day, so as to have become a common right and thus the common law.” And in the Barnes case, Judge Werner, referring to that case, says “that the jus privatum, of the Crown, by which the sovereign of England was deemed to be the absolute owner of the soil of the sea and of the navigable rivers, was totally inapplicable to the conditions of our colonies when the common law was adopted by them, and that this right, from the first settlement of our province, seems to have been abandoned to the proprietors of the upland so as to have become a common right and thus the common law of the State.” However, it is obvious from the context that it was not intended to hold that the owners of the upland had succeeded to all of the proprietary rights of the sovereign or that, as such owners, they took title to the land under water. Indeed, Judge G-ray closes his opinion by referring to the right of the riparian- owner as an easement or right of access; and while Judge Werner did not undertake precisely to define the line of demarkation between the rights of riparian owners and the public, he did say that the riparian owner “in his capacity as such, acquires only those rights in the foreshore which are necessary to enable him to make a reasonable use of his upland; and the principal attribute of such use is access to and egress from the open water.” The Town of Brookhaven case decided that the common law of England was inapplicable to our changed conditions in so far as it did not allow the riparian owner to make practical use of his right of access by the construction of a wharf or pier. The Barnes case decided that that right must be exercised in a reasonable way so as not to interfere with the right of passage of the public.

It lias never been questioned in this State that, where the royal grants in terms included land under water, title thereto vested in the grantees and is now in their successors or grantees; and it can hardly he said to be the recognized common law of this State that the proprietary rights of the king have been abandoned to, and are now owned by, the owners of • the upland in view of the fact that the light of the State to make grants of lands under water has been exercised throughout its history and has never been questioned. These grants convey, not the right of dominion for purposes of navigation, but the title, the proprietary • rights of the king, as modified of course by our changed conditions. Although silent on the subject, they are impliedly made subject to the superior right which was always held in trust for the public, the right of dominion in aid of navigation. (Sage v. Mayor, 154 N. Y. 61.) It is true that, under the statute, the owners of the upland have the right of pre-emption; but the Legislature may make grants to others, e. g., to a railroad for a right of way (Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 75), and doubtless to any one for any proper public purpose. (See Coxe v. State, 144 N. Y. 396.) While such a grant does not deprive the owner of the upland of his character as a riparian owner or permit his right of access to be entirely cut off, he is entitled only to a reasonable use of his easement, consistent with the right of the State to make such use of the land as the public interest may require. (Hedges v. West Shore R. R. Co., 150 N. Y. 150.)

The cases in this State, most of which are referred to in the cases cited supra, all refer to the right of the riparian owner as an easement only. It is plainly deducible from the Barnes case that the riparian owner and the owner of the title must exercise their respective rights in a reasonable way, consistent with the rights of each other. Both are subject to the supreme right of the State and the national government to exercise dominion for the purposes of navigation. I do not now undertake to define the easement of the owner of the upland, but it is plain that, in order to maintain an action like this, he must show some substantial interference with that easement, irrespective of whether the title is in the State or the town. In that respect the case seems to me precisely like the case of Halleran v. Bell Telephone Co. (64 App. Div. 41; affd., 177 N. Y. 533), in which it was held that an abutter upon the street could not enjoin the maintenance of poles, erected in front of his premises, without showing some substantial damage to his easement.

It seems to me, moreover, that, upon the record in this case, it must be held that the defendant had a right to erect and maintain its line of poles and wires. The town of North Hempstead has always claimed the title to the foreshore in question. It was stipulated and agreed upon the trial that the premises of the plaintiff, as well as the lands under water fronting thereon, “ are geographically within the limits of the territory defined in the Kief and Dongan Patents.” The .construction of such patents has frequently been the subject of judicial inquiry, and while land under water will not be deemed to have been included where the meaning is doubtful, e. g., where the land is described as bounded by, along or upon tide water, it has never been questioned, as far as I can ascertain, that, where the land under water is included within the precise terms of the grant, such grant operates as a conveyance of it. If, then, the title is in the town, it must follow that it has the right, subject to the easement of the upland owner, to make such public use of it as it deems proper, precisely as the State has that right respecting the land under water to which if has title. The case, therefore, comes precisely within the doctrine of Hedges v. West Shore R. R. Co. (supra), the only distinction being that in that case there ivas some interference with the riparian owner’s right of access, while in this case none is shown. The case is in no respect like the case of Matter of City of New York (168 N. Y. 134), for in that case the riparian owner’s right was entirely cut off, not by a work for the improvement of navigation, but by the construction of a speedway. The judgment should be reversed.

Hirschberg, P. J., Jenks and Rich, JJ., concurred; Burr, J., concurred in result.

Judgment reversed and new trial granted, costs to abide the event.  