
    John D. Chism, Jr., and George M. Chism, Respondents, Appellants, v. Sheldon D. Smith, Appellant, Respondent.
    Third Department,
    May 20, 1910.
    Ejectment — action by private owner does not lie' to prevent interference with, riparian rights by the erection of structures in public waters— nature of action — pleading and conduct at trial conclusive.
    One who has dedicated to the public a street which leads to public waters owned by the State, or who owns uplands on such waters, cannot maintain ejectment against another who builds a boathouse and dock in the line of the street or in front of such lands but on public lands beyond the low-water mark. This, because the plaintiff has no title to the soil from which he seeks to eject the defendant, and ejectment does .not lie to prevent interference with the plaintiff’s incorporeal hereditaments as a riparian owner of uplands abutting upon public waters.
    The plaintiff’s remedy is by a suit in equity.
    The court cannot treat an action of ejectment as a suit in equity where the parties by pleading and by conduct at trial have themselves treated it as in ejectment.
    Kellogg, 3"., and Smith, P. J., dissented, with opinion.
    Gross-appeals by the plaintiffs, John D: Chism, Jr., and another, and the defendant, Sheldon D. Smith, from parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Warren on the 13th day of March, 1908, upon the decision of the court rendered after a trial at the Warren Special Term.
    
      Daniel J. Finn and Walter A. Chambers, for the plaintiffs.
    
      Charles R. Patterson, for the defendant.
   Houghton, J.:

In 1893 the Lake George Camp Association purchased a tract of land bordering on Lake George, and laid it out into blocks and building lots, with avenues and streets, and subsequently sold lots abutting thereon, with a right of way over such avenues and streets, reserving title to the beds of the streets in itself. One of these avenues was known as White avenue, and ran to the lake shore between blocks designated Nos. 10 and 13. The defendant purchased fou’r lots abutting on another avenue, and not bordering on the lake. Some of the.streets and avenues, upon which houses were built, were worked as roadways, and it appears that others, including "White avenue, as it approached the water, were not defined except by the maps according to which purchasers bought. A sea wall was built along the shore. There is some- dispute as to its location, but it was out in the lake at least'as far as low-water mark. Beyond this wall a few inches and directly across what Would have been White avenue had it "extended into the water, and, as the court finds, also in front of a portion of block 13, the defendant built a boathouse and dock adjacent thereto for his own private use. By mesne conveyances the plaintiffs acquired title to all the interest of the association in the land which remained after the conveyance of such lots as had been sold, which included the title to the bed of White avenue and the whole of blocks 10 and 13.

It was conceded on the trial, and found by the court, that the waters of Lake George are public waters, and that the owners of the upland have title only to low-water mark, the title to the bed of the lake being in. the people of the State.

The plaintiffs brought this' action in ejectment, pleading that they were the owners of the strip of land known as White avenue, and alleging that the defendant withheld the possession of some part thereof from them and demanding possession with damages for withholding the"same. On the trial or at its conclusion the court •permitted an amendment of the complaint embracing an allegation of ownership in plaintiffs of block 13 and that the defendant’s boathouse and pier were adjacent thereto. The action was tried before the court without a jury and the plaintiffs were given judgment ejecting the defendant from that part of his boathouse and pier out in the lake beyond low-water mark adjacent to block 13, but refused such judgment so far as the same was adjacent to White avenue. The defendant appeals from the judgment as rendered, and the plaintiffs appeal because the court refused to give the full relief demanded.

We are of the opinion that the complaint should have been dismissed on the ground that an action of ejectment is not the proper remedy. We concur in thé conclusion of the learned trial court that the streets and avenues laid out upon the tract of land by the plaintiffs’ predecessors in title were dedicated to the public use. By the various maps circulated by the association and from- the deeds which it gave it is apparent that it was the intention to dedicate the avenues and streets on the plot to the use of the lot owners and the public. Title to the beds of the streets, however, was expressly reserved in the deeds which were given and the plaintiffs have succeeded to that title and own-all of the streets subject to the public use. Had the defendant erected his dock -and boathouse in White avenue, thus taking exclusive possession and imposing upon the land a burden inconsistent with the public easement, the plaintiffs could have maintained ejectment therefor. (Westlake v. Koch, 134 N. Y. 58.) So, too, if the boathouse and dock were upon block 13, the plaintiffs being the owners.could have maintained ejectment. But neither the dock nor the boathouse which the defendant erected is on lands which belong to the plaintiffs, but both are built upon lands which belong to the people of the State, and such is the express finding of the court. While the owners of uplands have the right of access to the water and the right to build such docks and piers from such lands into the water as will not interfere with navigation, this right is only an appurtenance or easement incident to the ownership of the uplands. If a private person builds any structure which interferes with this littoral right of the owner of the upland he can by appropriate action cause its removal. Hot, however, by ejectment, for the right to eject depends upon superior title to the land itself. Such rights incident to the ownership of the shore are incorporeal hereditaments. Ejectment does not lie for an incorporeal hereditament but only for a corporeal hereditament of which a sheriff can deliver possession. (Rowan v. Kelsey, 18 Barb. 484; Moore v. Brown, 139 N. Y. 127; Butler v. Frontier Telephone Co., 186 id. 486.) It is apparent that the sheriff could not put the plaintiffs in possession of lands not belonging to them but belonging to the people of the State, whatever the character of the defendant’s occupation might be.

Town of Brookhaven v. Smith (188 N. Y. 74) and Barnes v. Midland R. R. Terminal Co. (193 id. 378), upon which the plaintiffs rely, are not authorities sustaining the proposition that an action of ejectment lies for an interference with littoral rights. In the former the plaintiff owned the land under water by grant from the crown and the action was for trespass, and in the latter case the action was in equity to restrain the defendant from interfering with the passage of the public over the beach between high and low-water mark. An action in ejectment was held to lie in Champlain, & St. Lawrence R. R. Co. v. Valentine (19 Barb. 484) only because the State had granted to the plaintiff the land under'water in Lake Champlain below low-water mark.

¡Notwithstanding the claim of the plaintiffs on the trial and upon the argument on' appeal that the action- is purely one of ejectment and that it is maintainable as such, it is suggested that the action, may be treated, -in view -of the answer of defendant, as an equitable action for the removal of structures interfering with plaintiffs’ right in the Waters of the lake. The defendant plead several special defenses, all, however, tending to defeat the plaintiffs’ title. All' the evidence introduced upon the trial was pertinent to an action of ejectment. At the close of the plaintiffs’- case the defendant moved for-dismissal of the complaint on the ground that the plaintiffs had shown no title to the property in question, and in his requests to the court to find he specifically asked the court to rule that the action was not maintainable and that an incorporeal hereditament could not be recovered in an action of ejectment. The. learned' counsel for -the plaintiffs in his brief says that the gist of the defendants objection to recovery by plaintiffs was that the dock (as well as the boathouse) was not proved to be on land belonging to plaintiffs. There Was not,.therefore, either on the trial or the argument on appeal any . abandonment by plaintiffs of the position that ejectment would lie, or surrender by the defendant of h-is attitude that ejectment was not the proper remedy, and it would .be doing violence to the pleadings and the- course of .the trial to treat the present action as one in equity when all parties have consistently maintained that it was one at law. Courts have become more and" more liberal in the treatment of pleadings and many strict.rules with respect to various forms of, action have been abrogated, but they have not yet gone -so far as to abolish the distinctive features of an.action of ejectment. That it still retains its especial characteristics is illustrated by the discussion of the subject throughout •the opinion in Butler v. Frontier Telephone Co. (supra).

The plaintiffs having failed to prove that the defendant’s dock nnd boathouses were upon lands belonging to them, the learned trial court erroneously granted them any relief whatever. '-

The judgment must be reversed and a new trial granted, with costs to the appellant defendant .to abide the event.

All concurred, except Kellogg, J., dissenting in opinion, in which Smith, P. J., concurred.

Kellogg, J.

(dissenting):

The defendant is the owner of certain lots of the Lake George Camp Association grounds, upon which he has a summer residence. His lots do not touch the lake, but are about two blocks distant. He built a boathouse upon a dock, which he constructed for that purpose in the lake, at low-water mark. It is conceded that Lake George is navigable water and not private property, and we assume from the concession, and the manner in which the case was tried, that the title to the lands below low-water mark is in the people of the State. The plaintiffs’ title runs to low-water mark only.

The greater part of the boathouse is at the end of White avenue, but a small part of it extends over in front of block 13. The court has found that White avenue extends between blocks 10 and 13 to the lake, and that the plaintiffs are the owners of said blocks, and all the lands formerly belonging to the camp ground association which had not been sold to lot owners, and of the streets themselves, subject to the right of lot owners to use them as streets.

The lots were sold according to a map upon which various streets and avenues appear, and the conveyances were made describing the lots by lo.t. and block numbers with a right of way to and from said lot upon and over the streets or highways laid out upon said grounds the title of which said streets or highways is reserved to the party of the first part.”

The findings of fact by the court and the conclusion that the action may be maintained against the defendant for a recovery of the land which is occupied by the boathouse and dock immediately in front of block 13, are satisfactory; but it is in error in the conclusion that the plaintiffs have no right of action with reference to that part of the defendant’s boathouse sitriated at the end of White avenue. Defendant has no right to appropriate the water front at the end of this street to the exclusion of the plaintiffs and of all persons who purchased lots from the association. The association, by plotting these lands and selling them with reference to the map, retained the title to the streets themselves and only gave the purchasers a free right of way over and through the streets. The defendant and all other lot owners have the right to enter the lake from this street, but the defendant 'may not build a boathouse there and thereby assume the exclusive occupation, of the street or a material part thereof.

The'rights of the owner of lands adjoining navigable waters have’ been so fully defined by recent decisions- that it is unnecessary to discuss them. (Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378; Town of Brookhaven v. Smith, 188 id. 74.)

These cases seem- to indicate that the owner of the uplands, has a common-law right of access to navigable waters from the front of his land, including ■ the construction.- and maintenance of a pier .on the land under water beyond higlnwater mark for. his own use, or the public use, subject to such general rules and regulations as Congress'or the State may prescribe for the protection of the rights of the public. The Barnes case holds-that .the public-have the right to pass and repass between high and low-water-mark for the purposes of .fishing, bathing, boating or other proper purpose, and that while the owner of the upland- had the- right tq erect a pier, he may not unnecessarily interfere- with the right of passage over the beach by the public, and that a person suffering-special injury thereby is entitled to equitable relief, and that-if. the owner of the upland erect unnecessary useless structures interfering with such. right of passage/ a person -injured thereby could have injunctive relief.

It is urged that such right is at most an incorporeal hereditament, and'that ejectment: does not lie for the recovery thereof,, but that the remedy, if any, is an action in ■ equity. (Moore v. Brown, 139 N. Y. 127.)

The recent cases, carried to their legitimate conclusions, establish that the plaintiffs have a common-law right to have the shore upon the navigable waters in front of their premises unobstructed by structures unlawfully built thereon, and that the illegal erection of a structure thereon is an invasion of their legal rights for which they may have a proper remedy.

It is not necessary to nam'e this action as an action of ejectment or'otherw-ise ;< the object of the action is to prevent the illegal interference by: the defendant with the plaintiffs’ common-law rights. The sheriff may restore to the plaintiffs the use of the property by a removal of the illegal structures." (Butler v. Frontier Telephone Co., 186 N. Y. 486.)

While the complaint does not'state all the facts upon which the plaintiffs’ right to relief rests, the answer states further facts and demands equitable relief, and the complaint, the answer and the reply fairly bring before the court the facts which are necessary to consider in determining whether the plaintiffs may have relief in this action.

lío objection was made that evidence offered was outside of the pleadings, but the rights of the parties in every aspect of the case appear to have been freely litigated. The question tried was the right of the defendant to maintain the boathouse at the place w;here it is located. Under the pleadings the court was required to determine whether the plaintiffs’ alleged conveyances were unlawful clouds upon the defendant’s title, and if so, to remove them; whether the attempted conveyances of the streets and the strip of land along the shore were fraudulent and void, and if so, to set them aside; to adjudge and determine whether the streets and the strip of land along the shore had been dedicated to the public use, and the court was required to grant such other or further relief in the premises as may seem proper.” The object of the trial was to do justice between the parties upon the facts alleged and the facts proved, the issue actually tried ; and it would be a denial of justice to hold after this trial that while the plaintiffs were entitled to a judgment restraining the defendant from maintaining a boathouse in front of their premises, they must fail, in the action and be driven to another action because their complaint, technically construed, is for ejectment and not for equitable relief. The name is immaterial; the judgment should rest upon the facts actually litigated and foreshadowed by the entire pleadings, the complaint, the answer and reply. This is not a case of surprise, but it is a technical objection urged to do an actual injustice between the parties after a full and fair trial has been had. It is true that in his requests to find the defendant asks a finding as a conclusion of law that an incorporeal hereditament is not the subject of an action of ejectment; but the answer, the reply and the course of trial had removed this case outside of the technical definition of-an action of ejectment. '

The judgment for possession may be subject to the criticism that the plaintiffs acquired thereunder the boathouse itself. It should, therefore, be modified by directing that tile judgment be executed by removing the boathouse from said premises unless the defendant, within ten days from the entry of the judgment, shall cause the same to be removed. -

The court having. found all the facts, but having drawn an erroneous conclusion of law with respect to some of them, it is competent for this Court to give such judgment as a proper application of the rules of law to the facts found justifies. (Du Clos v. Kelley, 197 N. Y. 76.)

The court- did not err in directing the amendment to the complaint. It is true that the complaint described the land occupied by the defendant as the thirty feet at the end of White avenue. It also described it as being a part of the Garrison ground tract, so called, upon which the defendant has constructed and maintains a boathouse and dtick. The evidence and recovery’ relate solely to the ground upon which the boathouse and dock were constructed. The-judgment is fairly justified by the pleadings.

The judgment, therefore, should be modified as above, and by including all the premises occupied by the boathouse and dock, instead of only that part thereof opposite block 13, and as so amended should be affirmed, with costs to the plaintiffs.

Smith, P. J., concurred.

Judgment reversed and new trial granted, with costs to appellant defendant to abide event.  