Misc.] Supreme Court, October, 1918. person being thus notified, if the question of the exact description of the property becomes important, he may ascertain it from the petition. In this particular case all of the interested parties have received notice, and no objection to the registration of title is made except by the adjoining owner aforementioned. Application to register the title is granted. Application granted. LOUIS C. TIFFANY, Plaintiff, v. Town OF OYSTER BAY and WILLIAM B. KUNZ, Defendants. Lands (Supreme Court, Nassau Special Term, October, 1918.) - under water - grant of - abutting owners easements navigable waters - town of Oyster Bay has right to enter upon filled-in land below high-water mark and erect bath-houses and other improvements for benefit of public. An owner of lands abutting on Cold Spring Harbor obtained from the commissioners of the land office a grant of land below high-water mark in front of his premises for the purpose of beneficial enjoyment. After he had erected a series of concrete walls running from his upland into the waters of said harbor it was judicially determined that he acquired no right under the state grant because the title to the lands below high-water mark was vested in the town of Oyster Bay under the Andros patent of 1677. Held, that so long as his easement of access to the navigable waters was not destroyed or unreasonably interfered with the town had the right to enter upon the filled-in land and erect bath-houses and other improvements for the benefit of the public. The right of the public to use the foreshore for fishing, bathing, boating and passage carries with it the right to make improvements calculated to render such public rights more available. The shore owner is not entitled to have the upland remain in actual contact with the water through the entire length of his original line, and the filling in of a portion of the fore [Vol. 104. Supreme Court, October, 1918. shore is not an invasion of his rights where a foreshore sufficient in extent to enable him to exercise his easement of access remains in its natural condition. The fact that the owner himself created the filled-in land does not enlarge his rights so as to give him the right to restore the land to its original condition by removing the fill. ACTION to restrain the erection of bath-houses in front of plaintiff's upland on the westerly side of Cold Spring Harbor. Frederic R. Coudert (Rowland Miles, of counsel), for plaintiff. George B. Stoddart (Henry A. Uterhart, of counsel), for defendants. FABER, J. This is an action to restrain the town of Oyster Bay and William B. Kunz, as the town's contractor, from erecting bath-houses for the use of the public on a strip of filled-in land in front of plaintiff's upland on the westerly side of Cold Spring Harbor, and for permission to the plaintiff to restore such filled-in land to its former condition of land under water by removing the fill. In There is no dispute as to the material facts. The plaintiff, Louis C. Tiffany, is the owner of a large tract of upland on the westerly side of Cold Spring Harbor, upon which his residence is situated. December, 1904, he applied to the commissioners of the land office of the state of New York for a grant of land below high-water mark in front of his entire upland, for the purpose of beneficial enjoyment, and such grant was made to him on March 30, 1905, after a public hearing in which the town appeared and made objection. Upon receiving such grant the plaintiff Misc.] Supreme Court, October, 1918. erected a series of concrete walls or abutments running from his upland into the waters of Cold Spring Harbor. As soon as he started to do this he was notified by the town authorities that they claimed title to the lands under the waters of Cold Spring Harbor, and upon his refusal to remove the walls which he had built the town commenced to remove the same. Thereupon, on or about April 28, 1908, an action was commenced in the Supreme Court, in which Mr. Tiffany was the plaintiff and the town of Oyster Bay and the then highway commissioners of the town were defendants, to restrain said defendants from removing or attempting to remove any jetty, wall or structure erected by the plaintiff on the said lands below high-water mark. After a trial at Special Term a judgment was entered on January 7, 1909, granting the injunction prayed for by the plaintiff. An appeal was taken by the town to the Appellate Division in the Second Department, which affirmed the judgment below by a divided court. Thereafter an appeal was taken by the town to the Court of Appeals, which reversed the judg ment and granted a new trial (Tiffany v. Town of Oyster Bay, 209 N. Y. 1), and upon the new trial the complaint was dismissed on the merits by a judgment entered February 7, 1914. The result of this litigation was to establish that the state had no title to the land below high-water mark which it assumed to grant to Mr. Tiffany as owner of the adjacent upland, and that title to said land below high-water mark was vested in the town of Oyster Bay under the Andros patent of 1677. While the litigation above mentioned was pending the plaintiff proceeded to build a retaining wall below high-water mark and running substantially parallel Supreme Court, October, 1918. [Vol. 104. with the line of his upland in front of a portion of said upland, and to fill in below high-water mark behind this wall, thus creating the strip of filled-in land which is the subject of the present controversy. A public highway runs down to the waters of Cold Spring Harbor through the plaintiff's upland, and the termination of this highway, which has been used by the public generally for many years as a point of departure for the use of the waters of the harbor for boating, fishing, bathing and other purposes, adjoins one end of such strip of filled-in land. Upon the entry of final judgment in its favor in the former injunction suit the town started to erect a row of bath-houses for the use of the public on a portion of the strip of land which had been filled in by the plaintiff below high-water mark, such row of bathhouses being approximately fifty feet in length, and being situated immediately east of the point where the public highway above mentioned reaches the shore. The plaintiff thereupon commenced the present action, asking in his complaint that the defendants be restrained from erecting such bath-houses and that the plaintiff be permitted to restore the foreshore in front of his premises to its original condition by removing the fill. The answer of the defendant town admits that it is the intention of said defendant to take and hold possession of all the filled-in land in question and to erect thereon, for the use of the public generally, the bath-houses above mentioned, and to use the premises "as a place for bathing, boating and other lawful purposes." The claim is advanced on behalf of the plaintiff that the defendant town would have had no right to fill in any portion of the foreshore in front of plaintiff's upland, and consequently that it has no right to maintain and use the strip of filled-in land which has been Misc.] Supreme Court, October, 1918. created by the plaintiff. After a careful consideration of the authorities cited in plaintiff's brief and other decisions bearing on the subject I am unable to agree with this contention. Clearly the defendant town would have no right to cut off all access by the plaintiff to the navigable waters of Cold Spring Harbor by the erection of a solid wall or other impassable barrier between the plaintiff's upland and such waters for any purpose other than the improvement of navigation without making compensation for the easement of access so destroyed. Matter of City of New York, 168 N. Y. 134. I am of the opinion, however, that said defendant would have had the right to fill in such portion of the foreshore as has been filled in by the plaintiff and to use the filled-in land in the manner now proposed by it. Hedges v. West Shore R. R. Co., 150 N. Y. 150; Oelsner v. Nassau Light & Power Co., 134 App. Div. 281. In Hedges v. West Shore R. R. Co., supra, the plaintiff, an upland owner on the westerly shore or bank of the Hudson river, sued to restrain the operation of a railroad which had been constructed by the defendant on a strip of land below high-water mark, in front of plaintiff's premises and between those premises and the navigable portion of the river. The railroad structure was a pile bridge with openings of fourteen feet between the uprights and a height, in the clear, of eight feet above high tide, and the strip of land upon which it was built had been acquired by the defendant railroad company by exercise of the power of eminent domain, title thereto being originally vested in the state. It was held by the Court of Appeals that as the defendant's railroad structure did not obstruct or interfere with the plaintiffs' natural or reasonable easement over the waters to the navigable channel it |