
    The People of the State of New York, Plaintiff, v. Steeplechase Park Co., Emilie Huber et al., Defendants.
    (Supreme Court,
    Kings Special Term,
    September, 1913.)
    Highways — what constitutes — subject to public right of travel.
    Title — of state in tidal waters — grant of tidal lands to private individuals or corporations—lands under water — construction of grant of lands under water—encroachment upon beach in front of upland — highways — nuisance. .
    A beach between high and low water marks constitutes a sort of natural public highway, and although it may not be subject to all the incidents of a regularly established public highway it is subject to the public right of travel by all means used on the highways of the state.
    Whatever title the state retains in tidal waters, whether originally derived from the jus privatum or the jus publicum, is now held by the state not in a private or proprietary capacity, but as sovereign, and, hence, in trust for the public.
    Whether the state may lawfully grant tidal lands to private individuals or corporations so as to extinguish the public right of passage, qu<sre?
    
    A grant by the state of lands under water and between high and low water marks to an individual, which contains no habendum clause, or words to indicate any intention to surrender or extinguish the public right of passage, does not operate to deprive the public of such right over the foreshore and will be construed as subject thereto upon the principle that such grants are to be strictly construed against the grantee.
    
      Semble, the encroachment of the sea and the forcing back of the high water mark upon defendants’ property were occasioned by erosion rather than by avulsion.
    Whether the high water mark was forced back by erosion or by avulsion the public has the same right of passage over the new foreshore as it had over the old.
    Certain structures, including fences or barriers, a luncheon pavilion and platform connecting same with a pier, a roller coaster and a machine 'horse railway, encroaching upon the beach in front of defendants’ upland held to be purprestures and public nuisances so far as they, or any of them, project beyond the present mean high water line.
    The pier and proper approaches thereto, and a jetty, being instruments of proper use to the foreshore by the upland owner, or of protection to both the beach and upland, may remain provided a suitable and convenient means for passage underneath the same is maintained for persons on foot and for vehicles at all states of the tide.
    Action by the People of the State of New York for the removal of permanent structures erected on a beach at Coney Island.
    Thomas Carmody, attorney-general (William A. Mc-Quaid, deputy attorney-general, of counsel), for plaintiff.
    Frank Obernier (Samuel S. Whitehouse, of counsel), for defendant Huber.
    Edward J. Byrne, for defendants Steeplechase Park Company et al.
    Hervey, Barber & McKee, for defendant Hogg.
   Benedict, J.

This is an action by the People of the State of New York, through the attorney-general, for the removal of certain structures of a permanent nature erected on the beach or foreshore in front of the premises situated between Surf avenue and the Atlantic ocean at Coney Island, which are occupied as an amusement resort known as Steeplechase Park and having a frontage on the shore of approximately 633 feet.

The defendant Emilie Huber owns the westerly portion of the upland adjacent to the foreshore extending 297.70 feet from the westerly boundary line in an easterly direction. She claims title in fee to the beach in front of her upland under a patent from the state, which contains no restrictions whatever, but purports to convey a fee. The defendants Steeplechase Park Company own the central portion extending for a distance of 148.63 feet easterly from the Huber parcel. They claim title to the beach in front of said premises under a patent from the state to Paul Weidman, which contains a restriction against erecting any structure which would interfere with the public’s right of passage between high and low water marks. The defendants George C. Tilyou and Elizabeth Burgess Hogg own the next parcel of land to the eastward, extending a distance of 131.11 feet. This leaves a distance of about 56 feet running from the easterly side of the premises last mentioned to the easterly side of the park, which is not owned by any of the defendants, although the defendants or some of them are in possession thereof. No grant of the water front has been made in respect of any of the premises in question except as already stated.

The foreshore or beach is approximately 122 feet wide at the westerly side of the park, about 125 feet wide at a point in the middle of the park, and 133 feet wide at the easterly side of the park, thus giving an average for the strip of 126% feet.

It is alleged in the complaint and was established upon the trial that the beach or foreshore in front of the upland belonging to or leased by the defendants is fenced off and separated from the beach on either side of it, on the westerly side by a jetty or bulkhead, which is surmounted by a fence of pickets or palings and on the top of which are strung several strands of wire, and on the easterly side by a fence about ten feet in height, composed of spiles, posts, planks, boards, dead trees and barbed wire. There is no opening or passageway through these obstructions between high and low water, and there is no means of access to this part of the beach excepting through the uplands of the defendants and with their consent, to obtain which payment of a fee is required. In other words, the beach at this point is treated by the defendants in the same manner with respect to use by the public as is the upland, which they own or lease. In addition to the defenses against the public use of the beach thus established, the defendants Steeplechase Company have constructed and now maintain several other permanent structures, which are- situated partly upon the upland and partly upon the foreshore, viz., a roofed open pavilion, and the platform connecting the same with the pier, the roller coaster and the machine horse railway, and the pier with the water pipe under it across the beach, and the walk on spiles known as Tilyou’s Walk.” All of these structures are shown to rest upon and to be supported by spiles or posts driven into the sand of the beach and connected or tied together with cross-braces of wood or iron at various heights above the beach, and the plaintiffs contend that all these structures except the pier are unlawfully built and maintained by the defendants, or some of them, upon the theory that they prevent, obstruct or interfere with the free use of the foreshore by the People of the state and constitute an unlawful invasion of the rights of the public freely to pass and repass along the beach or littoral.

It will not be necessary to go into a lengthy examination of the older authorities on the subject of littoral rights, nor is a historical review of their origin and growth needful, however interesting the subject may be, for we have had in this state in recent years two decisions by our Court of Appeals, which provide a rule by which the case at bar may be decided. These cases are Town of Brookhaven v. Smith, 188 N. Y. 74, and Barnes v. Midland R. R. Terminal Co., 193 id. 378. In the former case it was held that the defendant owner of the upland had the right to erect a pier or dock across the tideway and lands under water so as to make available his long recognized right of access to' the navigable water, and this, notwithstanding a grant of the land under water to the plaintiff in fee. In the latter case it was held that the public had a right of passage over the land between high and low water marks, usually spoken of as the foreshore, and that the upland owner must exercise his right to build a wharf or dock in a reasonable manner so as not to interfere unnecessarily with the public’s right of passage. The Barnes case was carried on appeal to the Court of Appeals by permission, the Appellate Division certifying to the Court of Appeals the following question: “At the time this action was begun was there any right in the public to pass over the beach between high and low water mark at the defendant’s summer resort known as Midland Beach? ” This question was answered in the affirmative.

In that case the defendant claimed the foreshore under a patent; but it was held that the patent conferred no rights upon the defendant which it did not have as a littoral proprietor, and hence the case must be regarded as one not involving the question of rights under a patent. So, in the observations and deductions which I am about to make, I must be considered as speaking of tidal lands of the state for which no patent has been issued.

The Barnes case recognized a public right of passage over all lands over which the tide ebbs and flows. A public right of passage includes not only the right to pass on foot, but also, wherever it is physically possible, with vehicles, including vehicles drawn or propelled by horse or other motive power. In other words, as I interpret the Barnes case, it recognizes that a beach between high and low water marks constitutes a sort of natural public highway, and although it may not be subject to all the incidents of a regularly established public highway, it is subject to the right of the public to travel over it by all means used on the public highways of the state.

I also think the Barnes case is authority for the proposition that, the people hold the fee title to such tidal lands in their sovereign capacity in trust for the benefit of the public, or, in other words, that this right of public passage over tidal lands is of the same nature as the jus publicum of the ancient English common law, a term which has, I admit, been usually applied to the right of navigation upon navigable waters, but which, under, the Barnes case, seems also applicable to the right of passage over tidal lands. This right of passage, whether recognized by the old common-law writers and decisions or not, but which has been exercised from time immemorial over tidal lands, whether in public or private ownership, is of such a nature that it cannot be regarded as having had its origin in the jus privatum of the crown. Hence the only possible conclusion is that it is a part of the jus publicum, although it may not, perhaps, until recently have been judicially recognized. See Rhode Island Motor Co. v. City of Providence, 55 Atl. Rep. 696.

Under the Brookhaven and Barnes cases, furthermore, it would appear that the common law distinction between jus privatum and jus publicum is not now recognized in this state. Thus in the Barnes case it was said:

“It is clearly pointed out in the Brookhaven case that the rigid rules of the common law of England relating to littoral and riparian rights are not adaptable in every particular to our political and geographical conditions; * * * 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. * * * Except in so far as the jus privatum of the crown has devolved upon littoral and riparian owners, that right now resides in the people in their sovereign capacity. ’ ’

From this it would seem to follow that whatever rights the state retains in the tidal lands, whether originally derived from the jus privatum or the jus publicum, are now held by the state not in a private or proprietary capacity, but as sovereign, and hence in trust for the public, the same as the king formerly held title to those rights in lands under water known as the jus publicum.

Coming now to the consideration of the claims of the defendants under the patents above referred to, it is not necessary to determine whether or not the state has power to grant tidal lands to private individuals or corporations so' as to extinguish this public right of passage. At common law the crown had no separate power to surrender the jus publicum, but could do so only in conjunction with the Parliament. People v. New York & Staten Island Ferry Co., 68 N. Y. 71, 77. “ Public grants to individuals under which rights are claimed in impairment of public interests are construed strictly against the grantee, for it is reasonable to suppose that if they were intended to have this operation, the intention would have been expressed in plain and explicit language.” Id. So far as the Weidman grant is concerned, under which the defendants other than the defendant Huber claim, the public’s right of passage is expressly reserved. The grant to the defendant Huber purports to give and grant unto her, her heirs and assigns, certain land under water and between high and low water mark, described by metes and bounds. It contains no habendum clause. There are no restrictions upon the grant, but, on the other hand, there are no words to indicate any intention to surrender or extinguish the public right of passage. Hence, I conclude that her grant does not operate to deprive the public of such right. I do not hold that the grant is void, but merely that it is to be construed as subject to the public right aforesaid.

The defendants claim that they are entitled to maintain the present structures on the foreshore of which complaint is made, because the land whereon they stand was once all upland, and because the receding of the line of high water has, as they claim, been due to avulsion and not to erosion. The defendants all claim their respective interests in the upland under certain colonial patents issued to the town of Graves-end. These patents bounded the land granted on the south side by the “ Maine Ocean.” This, of course, meant to high water mark; and under well settled rules of law the patentees and their successors in title acquire whatever might be added to the upland by aceretion and would lose whatever might be taken away by erosion. .Accretion and erosion are gradual processes. Avulsion, on the other hand, if that term be applicable to a case where soil is washed away from the land of one owner without being deposited upon that of another (see Angell Tide Waters [2d ed.], 269; 3 Wash. Real Prop., § 1886; 1 Am. & Eng. Ency. of Law [2d ed.], 471, note), is a sudden pushing back of the shore line due to or effected by a violent storm. The evidence shows that in 1855-6 high water mark at the location in question was near the southerly side of Surf avenue; that thereafter there was an accretion until in 1900 high water line was distant from Surf avenue from about 900 to 1,000 feet. Then it receded some 200 or 250 feet between 1900 and 1902. Between 1902 and 1906 about 100 feet were regained. Since 1906 the changes have been slight. These encroachments of the sea indicate to my mind the operation of erosion rather than that of avulsion.

There is, however, testimony of some sudden changes, only two of which are definitely fixed as to dates, one since the survey of the mean high water line of 1913, as shown by plaintiff’s Exhibit 12, and one in 1903 to 1904. It doés not appear- in either of these cases that the washing away of the land was perceptible to one standing by and watching the process, and I very much doubt if I would be justified on the evidence in holding that there was at any time an avulsion. See Philadelphia Co. v. Stimson, 223 U. S. 605, 624, et seq.

It is not necessary, however, to determine whether the high water mark was forced back from where it was in 1900 to its position in 1913 by avulsion or erosion. Although where the shore recedes as the result of avulsion the boundary of the littoral-proprietor may not change, the public has the same right of passage over the new foreshore as it had over the old — else an avulsion might cut off the public right of passage altogether. This will be yet more evident when we consider that this public right of passage is of the same nature as the public right of navigation in navigable waters, which, all will agree, would not be lost by any change in the shore line or lines, however sudden. The practical result of the doctrine that title is not lost by avulsion so far as beach lands are concerned is that should the land reappear within the limits of the former boundaries the littoral proprietor may reclaim it. As authority for these propositions see Mulry v. Norton, 100 N. Y. 424.

From the foregoing considerations it follows that the structures which encroach upon' the beach in front of the defendants’ upland other than the pier and proper approaches thereto, and possibly the jetty, are public nuisances and should be abated as such. They are “ purprestures, ” a term defined by Littleton as “ a clandestine encroachment or appropriation upon lands or water that should be common or public ” (Co. Litt. 277b), because they encroach upon what, so far as the right of passage is concerned, is to be considered for practical purposes as a public highway. The public has the right to pass over the foreshore, between mean high water mark and mean low water mark, at any point, and at all times of day or night, on foot or in vehicles, and to do so on dry ground, except when the state of the tide makes this impossible, subject only to the right of the owner of the upland to maintain a pier or dock and suitable approaches. The photographs put in evidence on the part of the plaintiffs and the defendants clearly show that the defendants’ structures seriously interfere with the public rights in this respect. Probably it would always be possible for persons in bathing suits to pass over the beach, outside of the obstructions, as is indicated in some of the photographs, but the defendants are not entitled to require the public to exercise its rights in that costume. So it might also be possible to drive about among the spiles used in the support of the defendants’ structures with a dump cart; but the public is not limited to that means of vehicular traffic or agency of user.

It may be observed, in conclusion, that, in the absence of evidence to the contrary, the condition shown by the photographs must be deemed to have continued to the time of the trial, and the plaintiffs are entitled to a judgment according to.the facts as they existed at that time.

Judgment will, therefore, be rendered for the plaintiffs enjoining the defendants from maintaining the following structures, namely: The fences or barriers at either side of Steeplechase Park which are owned or used by any of the defendants in this action, the luncheon pavilion on the Huber property, and the platform connecting same with the pier, the roller coaster and machine horse railway, in so far as these structures or any of them project beyond the present mean high water line, which will be decided to be the same as shown on plaintiff’s exhibit 12, unless'on the settlement of the judgment it shall be made to appear otherwise. The pier may remain, but suitable means of free passage under or around it must be maintained, and the pipe underneath it must be removed if it interferes with such passage at any state of the tide. The ■ jetty at the westerly side of the Huber property, constituting, as it does, a protection both to the beach and the upland, may remain provided that convenient means are provided for passing over it or around the landward end for foot, passengers and vehicles, which passage must be left open for all persons freely to travel over. The walk known as Til-you’s Walk ” constitutes a proper approach to the pier, and may remain, provided that a suitable and convenient means for passage underneath it, by persons on foot and for vehicles at all states of the tide, is maintained.

Submit decision and judgment accordingly, giving notice of settlement. Bequests to find may be submitted on or before October sixth.

Judgment accordingly.  