
    The People of the State of New York, Respondent, v. Steeplechase Park Company and Others, Appellants, Impleaded with Elizabeth Burgess Hogg, Defendant.
    Second Department,
    December 31, 1914.
    Waters and watercourses — suit by State to compel removal of structures alleged to be nuisances upon foreshore along tide waters — State not estopped by allowing structures to be built — power of Commissioners of Land Office to convey fee of foreshore for private purposes —appeal —right of appellee who fails to take cross-appeal.
    Suit by the Attorney-General in the name of the People, to compel the defendants to remove certain structures alleged to be nuisances upon the foreshore in front of a park which runs along tide waters for a considerable distance. Evidence examined, and held, that certain of the structures invade and block the public right of free passage and should, therefore, be removed.
    The State is not estopped from bringing such a suit by allowing the structures to be built without protest.
    The Commissioners of the Land Office have no authority to convey to the owners of adjacent uplands an unqualified fee of the foreshore along tide waters for private purposes.
    The rule, that an appellee who takes no cross-appeal can be heard only in • the support of the decree, is binding upon the Appellate Division, notwithstanding the enlargement of its powers to make ‘new findings and to render final decrees conferred by section 1817 of the Code of Civil Procedure, as amended by chapter 380 of the Laws of 1912.
    Appeal by the defendants, Steeplechase Park Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of November, 1913, upon the decision of the court after a trial at the Kings County Special Term. (82 Misc. Rep. 247.)
    
    The judgment directed the removal of certain encroaching structures from the foreshore of Coney Island.
    
      Andrew F. Van Thun, Jr. [.Edward J. Byrne with him on the brief], for the appellants Steeplechase Park Company and others.
    
      Samuel S. Whitehouse [C. Walter Randall and Frank Obernier with him on the brief], for the appellant Emilie Huber.
    
      
      William A. McQuaid, Deputy Attorney-General [Thomas Carmody, Attorney-General, with him on the brief], for the respondent.
   Putnam, J.:

The Attorney-G-eneral brought this equity suit in the name of the People, to compel defendants to remove certain structures charged to be nuisances upon the foreshore in front of Steeplechase Park, which runs along the water a distance of about 633 feet. It is owned under different titles. Defendant Huber owns the westerly 297.7 feet under a patent or State grant made in 1897. Steeplechase Park owns 148.63 feet easterly, under a patent to Paul Weidmann, granted February 2, 1898. Defendants Tilyou and Hogg own the next parcel, extending easterly 131.11 feét. This leaves about 56 feet not owned by defendants, although they or some of them have it in possession. The beach or foreshore fronting these premises is from about 122 to 126 feet in width.

There were seven different structures which were claimed to encroach on the public right of passage, namely:

1. A westerly boundary jetty extending at right angles to the beach about 140 feet into low water.

2. A pavilion supported on piling, extending beyond high-water line 8 feet at the westerly end, 38 feet at the easterly end.

3. A pier on piles, carrying a twelve-inch iron pipe out to sea.

4. The Tilyou boardwalk about 15 feet high resting on piles, giving access to the pier, running easterly over the foreshore on piles, to a point beyond the eastern boundary, and thence north at right angles to the upland.

5. A machine race course, supported on five rows of piling.

6. A structure for a roller coaster, erected on piles, of which ninety-two stand out beyond high-water line.

7. A board fence at the easterly boundary, running out from high water 45 feet, whence it is continued by a row of piling a further distance of 88% feet.

The Special Term, following the rule of Barnes v. Midland R. R. Terminal Co. (193 N. Y. 378), sustained the public right of passage along the foreshore, and directed the removal of parts of the structures complained of (or a change of the structures or those supports which interfered with public access), with the exception of the jetty at the west line of the park (No. 1 above), the pier with the iron pipe (No. 3) and the boardwalk upon piles known as Tilyou’s walk (No. 4 above), provided they are modified so as to let people pass beneath. (82 Misc. Rep. 247.) Only the Steeplechase Park interests and Emilie Huber have appealed.

The legal right of access to the foreshore is contested as to the Huber patent, which ran to Huber without qualification. This patent was applied for and granted to her as owner of the adjacent uplands. The learned justice at Special Term held that such a grant, though unqualified in form, not being to promote commerce of the State, must be deemed subject by necessary implication to the right of the public. It was clearly beyond the power of the Commissioners of the Land Office to convey an unqualified fee of such foreshore for private purposes. (Matter of Long Sault Development Co., 212 N. Y. 1; Coxe v. State, 144 id. 396, 406.) There was no question as to the other grants, since they are in terms expressed to be subject to the rights of the public by a restriction similar to that in Barnes v. Midland R. R. Terminal Co. (193 N. Y. 378, 385).

The court below had to pass on intricate questions of fact and details of measurement, as well as to alleged fluctuation in the shore lines. The structures in question were erected at different times since the year 1904. Both appellants sought to have the court find as facts that, both before and since the structures had been put up, the sea had encroached violently, taking away the shore by avulsion. But, in view of all the testimony, the learned court was justified in declining these requests.

Upon this appeal an issue is raised as to the correct line of mean high water. The proof of this datum has been misconceived. At the Battery in Manhattan there has long been kept a daily tidal record. Its average has been established; from this datum, or that at the Navy Yard, are computed all surveys of elevations, whether out on Long Island or up the State. The corresponding levels are indicated by bench marks, one of which is cut in the middle bridge pier in Coney Island creek. From this, levels are run to fix the equivalent height along the beach, with a rise at Coney Island of two-tenths of an inch, the difference of tidal elevation at Coney Island above that at the Battery. When this horizontal plane has been extended to the actual shore, the contour lines of high and low water are surveyed laterally and staked out along the beach, regardless of what may then have been the accidental state of the water. These high and low-water lines are shown by diagrams, but the dates upon the diagrams are of the times of the above surveys, not when the water level was determined.

It is argued that these structures are not purprestures or nuisances. The term purpresture” is not limited to an encroachment on a public right of way on land, but applies to any invasion of sovereign rights along the seashore or the waters fronting same. (Weber v. Harbor Commissioners, 18 Wall. 57, 65.) A reading of all the proofs, with a study of the exhibits, confirms the conclusions that these structures did so invade and block the public rights of free passage.

We cannot hold that the State is estopped by suffering any of these structures to be built without protest. (16 Cyc. 780.) Here is an instance of the agents of the State, the Commissioners of the Land Office, in the Huber grant, exceeding their authority; and this is not cured by subsequent inaction by State officials. The judgment restores the public right of shore access, with as little interference with the Steeplechase structures as the circumstances admit. The Huber jetty is allowed as a guard to the beach to protect defendants’ land from the inroads of the sea (Rex v. Commissioners of Sewers of Pagham, 8 Barn. & Cress. 355), provided means are taken to let the public go over or around it. So as to the pier, if its pipe shall be raised to a height of seven feet, to leave sufficient headroom to pass beneath. The Tilyou boardwalk is also to remain, notwithstanding its long projection above the foreshore, if defendants provide below it suitable means for public passage.

In the absence of any appeal by the Attorney-General, we cannot consider his exceptions to the conclusions of law, and to the related portions of the decree, which permit defendants to keep the Huber jetty and the Tilyou boardwalk. The settled rule that an appellee, who takes no cross-appeal, can be heard only in support of the decree, is one necessary for the court and essential to advise the opposing litigants. (Burns v. Burns, 190 N. Y. 211; St. John v. Andrews Institute, 192 id. 382.) It still binds this court, notwithstanding the enlargement of its powers to make new findings and to render final decrees, conferred by chapter 380 of the Laws of 1912, amending section 1317 of the Code of Civil Procedure.

I advise, therefore, to affirm the judgment, with costs.

Jerks, P. J., Carr, Stapleton and Rich, JJ., concurred.

Judgment affirmed, with costs.  