
    The Town of Hempstead, Appellant, v. Newbold T. Lawrence, Individually and as Executor, etc., of Newbold Lawrence, Deceased, and Others, Respondents.
    Second Department,
    December 15, 1911.
    Waters and 'watercourses — riparian rights,— erosion and accretion — navigable inlét forming across the lands—imperceptible shifting.
    Where as the result of a violent storm an inlet broke through from Hempstead bay to the Atlantic ocean across a strip of beach, which inlet was- at first very shallow and confined to the lands of a single beach owner, but soon became navigable and in effect a river in which the tide ebbed and flowed, and subsequently by imperceptible degrees such inlet moved gradually and continuously to the westward at the rate of about 400 feet each year, and by reason of imperceptible accretion to its easterly bank maintained a constant width of half a mile, finally reaching a point where it passed from the lands across which it had originally broken entirely to and upon the lands adjoining on the west, the westerly proprietor does not thereby acquire title to that part of the beach originally belonging’ to the easterly proprietor which had been first eroded by the inlet and had been thereafter replaced by accretion.
    
      It seems, that, on the contrary, the title of the easterly proprietor extended to the easterly shore of the inlet and this included that part of the land of, the westerly proprietor which had been first eroded by the inlet and thereafter restored by accretion.
    Hirscbberg, J., dissented.
    ■ Appeal by the plaintiff, The Town of Hempstead, from a judgment of the Supreme Court in favor of the defendants, entered, in the office of the clerk of the county of Nassau on the 29th day of December, 1910, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint upon the merits.
    
      Charles F. Brown [Edward E. Sprague and Fred Ingraham with him on the brief], for the appellant.
    
      William M. K. Olcott, George Boochever, Eph. A. Karelsen, J. Henry Work and James L. Gillingham, for the respondents.
   Woodward, J.:

The plaintiff brings this action to .establish its title 'to a strip of beach land along the shore of the Atlantic ocean, and being the extreme southerly portion of the township. This property is a strip of sandy outer beach about three and one-half miles in length, and about 1,760 feet wide at its easterly extremity, and of substantial width throughout its entire length. This parcel of land is separated from the mainland, known as Hicks beach, by a shallow channel, and is bounded on the south by the Atlantic ocean. Eastward of Hicks beach is a body of water forming a portion of Hempstead bay, known as Broad channel, The premises in dispute are within the lateral boundaries of the lands, meadows, marshes, waters and beaches Which were granted to the freeholders. and inhabitants of the town of Hempstead by royal patent, executed by Thomas Dongan, Lieutenant-Governor of New York, and dated April 17, 1685. Prior to.the year 1870 a strip of sandy beach extended along the southerly line of the town of Hempstead, bounded southerly by the Atlantic ocean, from a point easterly of the premises described in the complaint to a point westerly thereof. In the month of April, '1870, a new inlet, then known as Deb’s inlet and subsequently known as Hog island or East Eockaway inlet, broke through from Hempstead bay to the Atlantic ocean at a point to the east of the easterly line of the premises described in the complaint. This inlet, at first very shallow, soon reached a considerable depth and became navigable both in fact and in law, being.used for ingress and egress from the ‘ cove which separated the beach, from the mainland. This inlet, in effect a river in which the tide ebbed and flowed between the Atlantic ocean and the cove, did not remain fixed, but gradually moved to the westward at an average rate, as appears from the testimony, of about 400 feet each year. This inlet or river appears- to have been practically one-half mile wide, with a channel ranging in depth from 3 to 7 feet at varying tides and about 500 feet wide, so that the inlet or-river in its progress to the west cut a channel of several feet in depth across this outer beach and opened it to navigation. With this movement of the channel to the west there came a gradual accretion to the easterly shore, and the evidence indicates clearly that this accretion,, following the westerly drifting of the channel, formed a considerable distance to the south or ocean side of the former location of the outer beach, though overlapping- the same to some extent, and the plaintiff claims that this accretion belongs to the town of Hempstead as the owner of the lands to which -the changing sands of the inlet attached, even though the location covers some of the area originally covered by the defendant’s land.. The learned court at Special Term has dismissed the complaint upon the merits (70 Misc. Rep. 52), and the plaintiff appeals to this court. In the process of time there was a moment when the plaintiff owned the eastern bank of the inlet or river while the defendant .or his predecessor in title owned the western bank of the inlet or river, and the evidence in this case shows that this inlet or river has gradually and with imperceptible movement proceeded to the westward, while a corresponding shore line has emerged to the eastward, the channel of half a 'mile in width, 500 feet of it being open to practical navigation for small craft, intervening at all times. Angelí on Watercourses (§ 57) quotes Blackstone to the effect that if a river by degrees gains upon the land of a person on one side and thereby leaves the other dry, the owner who loses his ground thus imperceptibly has no remedy. The same author continues: A river ran between two lordships, and the soil of one side, together with the river, entirely belonged to one of the lordships; and the river, by very slow degrees, did encroach upon the soil of the opposite lordship; but so very deliberately, that it was impossible- to perceive an immediate alteration; therefore, by. this imperceptible increase,-the land relicted became the property of the first lord. But if the river, by-a sudden and unusual flood, had gained hastily a great parcel of the other lord’s ground, he should still be entitled to the same.”

In the case at bar ah inlet or river is formed upon, the land of the town of Hempstead; it is a natural waterway in which the tide ebbs and flows, and by imperceptible erosions on the one side and accretions on the -other, the land of the defendant to the westward is shifted and made to attach itself to the lands of the town of Hempstead on the east, and if the land of one lordship could be transferred to. the other by this same process, we see no reason why the same result should not follow here; It is true, of course, in the case at bar that' the evidence does not show an imperceptible change, in the sense that the change could not be discovered at short intervals of time, but there is no evidence in the case which tends to show that any one could discover changes at the time they were being made, or that they could discover them at periods of a few days; the evidence is practically undisputed that intervals of weeks and months were necessary to show the changes, and that the movement has been at the rate of about 400 feet per year. In the leading case of King v. Lord Yarborough (3 B. & C. 91), which dealt with a tidewater ease, two passages were cited from Hale’s De Jure Maris in behalf of the crown, where the writer speaks of land gained by alluvion as belonging generally to the crown, unless the gain be so insensible that it cannot by any means, according to the words of one of the passages, or by any limits or marks, according to the words of the other passage, be found that the sea was there. This led to a discussion of the meaning of the word “ imperceptible,” and the court, speaking by Abbott, C. J., say: “In these passages, however, Sir Matthew Hale is speaking of the legal consequence of such an accretion, and does not explain what ought to be considered as accretion insensible or imperceptible in itself, but considers that as being insensible, of which it cannot be said with certainty that the sea ever was there. An accretion extremely minute, so minute as to be imperceptible even by known antecedent marks or limits at the end of four or five years, may become, by gradual increase, perceptible by such marks or limits at the end of a century, or even of forty or fifty years. For it is to be remembered that if the limit on one side be land, or something growing or placed thereon, as a tree, a house, or a bank, the limit on the other side will be the sea, which rises to a height varying almost at every tide, and of which the variations do not depend merely upon the ordinary course of nature at fixed and ascertained periods, but in part also, upon the strength and direction of the wind, which are different almost from day to day. And therefore, these passages from the work of Sir Matthew Hale are not properly applicable to this question. And considering the word imperceptible-’ in this issue, as connected with the words slow and gradual,’ we think it must be understood as expressive only of the- manner of the accretion, as the other words undoubtedly are, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time.” So Angell on TideWaters (1st ed. § 71) lays down the rule that “ The test of what is gradual as distinguished from what' is sudden seems to be that, though witnesses are able to perceive from time to time that the land has encroached on the sea line, it is enough if it was done so that they could not perceive the progress at the time it was made.” ' (See Mulry v. Norton, 100 N. Y. 432, and authorities there cited.) The original opening of this inlet or river was sudden; it occurred in a single storm on a given day. The change in the location of the inlet has never since that time been sudden in any such sense, in so far as the record goes. In a sense it might be said that a change of 400 feet in a shore line in a year would be sudden; it would be sudden in the case of a fixed shore line of the mainland, but it.is hardly remarkable, in the case of a mere sandhill thrown up by the changing tides of the ocean, and no witness pretends that he ever saw‘the change going on, or that he ever witnessed any considerable change due to a storm or other disturbance. Some of the witnesses testify that they have observed changes from month to month, but none of them claims to have observed changes at less' periods, and the case is barren of any evidence that any one could see the change going on at any givón moment, or that they were able to see any change from one day to another, and considering the nature of the soil and the circumstances disclosed by the evidence, we are of the opinion that the change must be deemed to have been slow and gradual, as distinguished from a sudden change wrought by storms or other violent action of the elements, such as was' evidenced by the original breaking through of the inlet..

This is not the case of an inundation or submerging of an island, which subsequently reappears by reason of a recession of the waters;, it is an' actual cutting away of the soil which originally belonged to the defendants’ property and carrying it away to the lands of the opposite proprietor and depositing .it in such a manner that it does not, in the process of the change, affix itself to the same location that it originally occupied, for the evidence is conclusive that for the most part the new beach is far south'of the original beach. Under these circumstances w.e think it was error for the learned court at Special Term to dismiss the complaint; certainly..the defendants are not entitled to the accretions which formed upon the lands of the plaintiff and which are south of the lands which they originally owned.

The judgment appealed from should he reversed and a new-trial granted, costs to abide the final award of costs.

Rich, J., concurred; Burr, J., concurred in separate memorandum; Hirschberg, J., dissented; Jenks, P. J., not voting.

Burr, J.:

I concur with Mr. Justice Woodward that this judgment ought to be-reversed.

Prior to 1870 plaintiff was the owner of a strip of sandy beach,- bounded upon the north by a shallow channel, separating it from the mainland, known as Hicks beach, and connecting Par Rockaway hay on the west with Hempstead bay on the east. Upon the east it was bounded by Broad channel, which connected Hempstead bay with the ocean, arid on the west by land claimed by defendants or then predecessors in title. In 1870, as the result of a violent storm, an inlet was formed through plaintiff’s land which connected said channel on the north with the ocean. This became and has continued to he up to the 'present time a navigable stream of somewhat varying width and depth. The easterly and westerly boundaries of this river were originally entirely upon plaintiff’s land. If it be true that, as the result of this, plaintiff lost title to so much of its land as lay in the bed of this river, it lost it only to the State, and continued to be the riparian owner upon both the east and west sides thereof.' Gradually the position of the bardes of this river shifted to the west until there came a time when the bed of this stream was coincident with the line which had formerly bounded plaintiff’s land upon the west and defendants’ land upon the east. If this stream had not thereafter shifted its banks this controversy could not have arisen. What had previously occurred might be interesting from a historical or scientific standpoint, but the legal rights of the parties would not he affected thereby. . Plaintiff would have been the owner of a plot of land, hounded on the south by the ocean and on the west by this navigable stream. ■ Defendants or their predecessors in title would have been the owners of a plot of laud bounded on the south by the ocean and on'the east by the same stream.' Each would have possessed the rights of riparian owners, both as to the ocean and the river. But the shifting of the banks of this river did not then cease. Very gradually the land of defendants to the west thereof disappeared by erosion. I think that there is but one conclusion to be drawn from the evidence in this cas,e, and that is that, while the change in the lines, of the channel of this river was at times somewhat sudden, the change in the position and location of its westerly bank was so gradual that it could not be perceived and noted except after the lapse of a considerable period of time. If the easterly bank of this river had remained stationary while the westerly bank continued to shift toward the west, I think that it could not be successfully claimed that the resulting loss of land did not fall upon the defendants. That is one of the hazards of riparian ownership of a sandy beach. The easterly' boundary line of their land would have been the westerly bank of this riavigable stream, notwithstanding the fact that this bank was some distance to the west of, the line formerly dividing the lands of .plaintiff and defendants. But by a process equally gradual with that of erosion on the west bank of the river accretion was going-on upon the east bank thereof. Nearly contemporanéous with the loss upon one side was the gain upon the other. But is that any reason why the law of erosion of defendants’ land and the loss consequent thereon should be suspended ? Is- the fact, that coincident with their loss, and in some degree commensurate with it, plaintiff obtained a gain, sufficient to overturn the Well-established law, both of erosion and accretion ? The result of defendants’ contention, if allowed, would be that, whereas, plaintiff was at one time an owner with riparian rights upon both sides of this navigable river, and afterwards an owner with riparian rights upon, the easterly bank thereof, it now loses all of such rights and defendants, acquire both. If, in 1870, when the inlet broke through from bay to gcean the location of this inlet had been' exactly upon the dividing line between plaintiff’s and defendants’ land, and subsequently thereto precisely the same gradual shifting of its hanks had occurred which the evidence in this case discloses .did occur, would any question then have arisen that defendants’ easterly boundary line receded and was fixed by the westerly bank of said stream or that plaintiff’s westerly boundary line progressed and was fixed by the easterly bank thereof ? I fail to see how the fact that the bed of the stream reached the original boundary line between the parties gradually instead of suddenly can produce any different result. When that point was reached the rights of the parties became fixed with reference to that stream, and thereafter their respective rights were the same as if it had always existed there.or as if it had suddenly come into existence at precisely that point.

I think that the judgment appealed from should be reversed both on the law and the facts and a new trial'granted, costs to abide the final award of costs.

Judgment reversed and new trial granted, costs to abide the final award of costs.  