
    Dolphin Lane Associates, Ltd., Appellant, v Town of Southampton, Respondent, and Trustees of the Freeholders and Commonalty of the Town of Southampton, Intervenor-Respondent.
    Argued June 3, 1975;
    decided July 2, 1975
    
      
      Michael Permut for appellant.
    I. The burden of proving the right to possession and title to the premises in dispute rests on the town and the trustees. (Trustees of Southampton v Betts, 163 NY 454.) II. The boundary line between plaintiff’s parcels of property north of Dune Road and the alleged title of the town to the land under water of Shinnecock Bay is the line of vegetation on the subject property. (Trustees of Brookhaven v Strong, 60 NY 56; Shinnecock Hills & Peconic Bay Realty Co. v Aldrich, 132 App Div 118; Lawrence v Town of Hempstead, 155 NY 297; Best Renting Co. v City of New York, 248 NY 491; Jacob v Town of Oyster Bay, 73 Misc 283, 155 App Div 913, 213 NY 661; Trustees of Town of East Hampton v Vail, 151 NY 463; Town of Islip v Estates of Havemeyer Point, 224 NY 449; Tiffany v Town of Oyster Bay, 234 NY 15; People v Steeplechase Park Co., 218 NY 459.) III. Except for the artificial works promulgated or paid for by the Town of Southampton, Shinnecock Bay was a nontidal body of water. (Matter of City of New York [Hutchinson Riv. Parkway Extension], 285 NY 587; Wheeler v Spinola, 54 NY 377.) IV. The public easement rights or "jus publicum ” is limited to the shore between high- and low-water mark of the Atlantic Ocean. (Borax, Ltd. v Los Angeles, 296 US 10; Trustees of East Hampton v Kirk, 68 NY 459; Trustees of Southampton v Betts, 163 NY 454; Tiffany v Town of Oyster Bay, 234 NY 15; Pearsall v Post, 20 Wend 111.) V. The judgment of the courts below effected a confiscation of plaintiff’s property without due process of law in violation of the Constitution of this State and the United States.
    
      Henry Root Stern, Jr., John P. Hederman, Richard B. Marrin and John J. Witmeyer, III for respondent and intervenor-respondent.
    I. Dolphin Lane’s case turns on questions of fact, not law, and thus cannot be reviewed by this court. (Fitzpatrick v International Ry. Co., 252 NY2d 136; Matter of City of New York [Fifth Ave. Coach Lines], 22 NY2d 613; Laverne v Incorporated Vil. of Laurel Hollow, 18 NY2d 645; 
      Farr v Newman, 14 NY2d 183; Smith v Dayton, 253 App Div 899; Best Renting Co. v City of New York, 248 NY 491.) II. The trial court correctly determined the location of the high-water mark of Shinnecock Bay, the boundary of respondent’s title, based upon the best — and only — available evidence. (Trustees of Southampton v Mecox Bay Oyster Co., 116 NY 1; People ex rel. Howell v Jessup, 160 NY 249; Martin v Waddell, 16 Pet [41 US] 367; Beers v Hotchkiss, 256 NY 41; Trustees of Southampton v Betts, 163 NY 454.) III. Title to Gull Island rests with the trustees and the town. IV. The courts below correctly decided that the Act of 1818 reserved an easement in favor of the public across Dolphin Lane’s property between the high-water mark of the Atlantic Ocean and the southerly top edge of the sand dunes. (Trustees of Southampton v Betts, 163 NY 454.)
    
      Bernard S. Meyer and Stephen P. Seligman for the New York State Land Title Association, amicus curiae.
    
    I. In recognizing a public easement in appellant’s land between the high-water line of the ocean and the top of the dunes, the courts below acted without basis in law or in fact for so doing. (Tiffany v Town of Oyster Bay, 234 NY 15; Tucci v Salzhauer, 40 AD2d 712; Borax, Ltd. v Los Angeles, 296 US 10; United States v Pacheco, 2 Wall [69 US] 587; Trustees of East Hampton v Kirk, 68 NY 459; Humble Oil & Refining Co. v Sun Oil Co., 190 F2d 191, 342 US 920; Trustees of Southampton v Betts, 163 NY 454; Knapp v Fasbender, 1 NY2d 212.) II. The trustees of the proprietors had the power to convey marshland to appellant’s predecessors in title. (Coxe v State of New York, 144 NY 396; Mannor Mar. Realty Corp. v Wachtler, 22 NY2d 825; Riviera Assn. v Town of Hempstead, 52 Misc 2d 575; Illinois Cent. R. R. Co. v Illinois, 146 US 387; People v Steeplechase Park Co., 218 NY 459; Shinnecock Hills & Peconic Bay Realty Co. v Aldrich, 132 App Div 118; Knapp v Fasbender, 1 NY2d 212; Lawrence v Town of Hempstead, 155 NY 297; Hinkley v Crouse, 125 NY 730.) III. The determination that the waters of Shinnecock Bay were naturally tidal in 1818 is without support in the evidence, and the fact that the bay has since become artificially tidal cannot be used by respondent as a basis for claiming title to riparian lands. (Howard v Ingersoll, 13 How [54 US], 381; Borough of Ford City v United States, 345 F2d 645, 382 US 902; Hanna v Stedman, 230 NY 326; Bromley v Mollnar, 179 Misc 713; Wheeler v Spinola, 54 NY 377; Sage v Mayor, 154 NY 61; 
      Matter of City of New York [Hutchinson Riv. Parkway Extension], 260 App Div 999, 285 NY 587; Matter of City of Buffalo, 206 NY 319; Matter of City of New York [Triborough Bridge], 159 Misc 617; Halsey v McCormick, 18 NY 147.) IV. The vegetation line test should have been employed to determine the boundary line of appellant’s property bordering on Shinnecock Bay. (Borough of Ford City v United States, 345 F2d 645, 382 US 902; United States v 21.54 Acres of Land, Marshall County, West Va., 491 F2d 301; Trustees of Southampton v Mecox Bay Oyster Co., 116 NY 1; Howard v Ingersoll, 13 How [54 US] 381.) V. In relying on marsh grass proof to the exclusion of other evidence of the tideland boundary the courts below erred as a matter of law. (Green v Horn, 142 App Div 90; Matter of City of New York [East Riv. Drive], 159 Misc 741; Sandiford v Town of Hempstead, 97 App Div 163, 186 NY 554; United States v Pot-Nets, Inc., 363 F Supp 812.)
    
      Peter V. Snyder for the New York State Association of Professional Land Surveyors, amicus curiae.
    
    I. The vegetation line should have been adopted in the interest of maintaining historical boundaries. (Coxe v State of New York, 144 NY 396; People v Steeplechase Park Co., 218 NY 459; Trustees of Southampton v Mecox Bay Oyster Co., 116 NY 1.) II. The vegetation line should have been adopted because it is the only practical method of determining the boundary line.
   Jones, J.

We hold that it was error as a matter of law for the lower courts in this case to ground determination of the location of the high-water line along the southern shore of Shinnecock Bay and thus the location of the northern boundary of appellant’s property in the Town of Southampton by reference to the type-of-grass test introduced by respondent town.

It is not seriously disputed in formulation that the northern boundary line of appellant’s property facing on Shinnecock Bay is the high-water line. The lower courts so held and we concur. The sharp dispute between the parties, joined by others asserting a broad interest in the outcome, is as to the method or proof by which the high-water mark shall be precisely located on the land. In our perception and analysis of the problem it is misleadingly simplistic to conclude that resolution of this issue turns on the results of an exhaustive scientific search for the precise line of average high-water. No legal significance attaches to the exact identification along this portion of the south shore of Long Island of refined hydrographic data. The issue placed before the courts in this litigation is a more practical, less sophisticated determination —location of the boundary line of property, title to which has passed from owner to owner until it has now vested in appellant.

Other aspects of the dispute between appellant’s predecessor in title and the Town of Southampton with respect to ownership of the property in question were compromised by a survey and exchange of deeds at the turn of the century. We see no warrant, however, for disturbing the conclusion of the trial court, now affirmed at the Appellate Division, that the resolution of differences reached in 1899 did not extend to or touch on the location of the northern, Shinnecock Bay boundary of the property.

Attaching real significance as we do to the importance of stability and predictability in matters involving title to real property, we hold that the location of the boundary to this shore-side property depends on a combination of the verbal formulation of the boundary line — i.e., the high-water line— and the application of the traditional and customary method by which that verbal formulation has been put in practice in the past to locate the boundary line along the shore. To accept the linguistic definition but then to employ an entirely new technique, however intellectually fascinating, for the application of that definition, with the result that the on-the-site line would be significantly differently located, would do violence to the expectations of the parties and introduce factors never reasonably within their contemplation. Thus, to recognize, as the town’s argument must, that the type-of-grass test for location of the high-water mark may one day be replaced by an even more sophisticated and refined test for determining the high-water line, with a consequent shift again in the on-the-site location of a northern boundary line, is to introduce an element of uncertainty and unpredictability quite foreign to the law of conveyancing.

The evidence in this case was really not disputed that prior to this litigation it had been normal practice to locate the high-water line by reference to the line of vegetation. If a change is to be made in the procedures for locating shore-side boundary lines to conform more precisely to hydrographic data, in our view, such innovation should be left to the Legislature.

There was uncontroverted testimony here that it was the long-standing practice of surveyors in the Town of Southampton to locate shore-line boundaries by reference to the line of vegetation. To give effect to such uniform practice is not, as the town contends, to delegate arbitrary powers to surveyors to determine property lines; rather it is the obverse, namely, to recognize that property lines are fixed by reference to longtime surveying practice. The Attorney-General has recognized the authenticity of the practice (33 NY State Dept Rep 415, 421). In Town of Southampton v Mecox Bay Oyster Co. (116 NY 1, 16) in interpreting the language of the Dongan Patent, we wrote: "Even though it be susceptible of the meaning claimed for it by the appellant, the strict letter of the instrument must now give way to the practical construction adopted and acted upon by the inhabitants of the town. Upon such construction. all the private titles to lands within the town rest, and, as has been appropriately said in the brief of the learned counsel for the respondent: 'Courts should not undertake to reverse the action and tradition of centuries, and change titles which have become vested under contrary views’.” The controlling principle here is that of which we wrote in Heyert v Orange & Rockland Utilities (17 NY2d 352, 363): "Whatever the rule might be if this were a case of first impression, it is certain that thousands of deeds conveying rights of way between private parties and instruments of dedication of public highways have been made on this rule, which has existed since the common law began in this State and which received its most recent expression unequivocally in this court in 1959. It has ripened into a rule of property which cannot be changed retrospectively without altering the substance of prior land grants.”

Accordingly, we hold that it was error here to rely on independent, novel means for location of the high-water mark. The case should be remitted for the limited purpose of determining the location of the northern boundary of the property by reference to the line of vegetation.

We have examined appellant’s other contentions with respect to the trial court’s determination that there is an easement in favor of the public between the high-water mark of the Atlantic Ocean and the southerly top edge of the sand dunes and appellant’s related argument that by the adjudication upholding such easement it was deprived of property without due process of law, and find them to be without merit.

The order of the Appellate Division should be modified to direct remittal to the Supreme Court, Suffolk County, to determine the northern boundary line of the property by reference to the line of vegetation, and, as so modified, the order should be affirmed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler, Ftjchsberg and Cooke concur.

Order modified, without costs, and case remitted to Supreme Court, Suffolk County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.  