Marba Sea Bay Corp. v. Clinton Street Realty Corp.

*296 Crane, Ch. J. The grant of eleven miles of foreshore, being the entire ocean front of the borough of Queens, which grant is to a private person for neither commercial nor governmental purposes, is one not recognized by the law. Neither the King nor the State could grant away for private purposes so much of the public’s rights in the lands under water. The matter was discussed in Coxe v. State (144 N. Y. 396, 406), where it was said: “ When the general doctrines of the English courts on this subject are given full scope, the conclusion is inevitable that the Parliament and the Crown together were not competent to grant to a private corporation, for priv'ate purposes, the seacoast around the island below the shore line, without violating established principles of law. (Martin v. Waddell, 16 Peters, 367.) While I am not aware of any such restriction to be found in the Constitution of this State, in terms, yet, from the very nature of the question, it must be deemed to be inherent in the title and power of disposition. The title which the State holds and the power of disposition is an incident and part of its sovereignty that cannot be surrendered, alienated or delegated, except for some public purpose, or some reasonable use which can fairly be said to be for the public benefit.” See the same point in People v. New York & Staten Island Ferry Co. (68 N. Y. 71); Illinois Central R. R. Co. v. Illinois (146 U. S. 387); also People v. Steeplechase Park Co. (218 N. Y. 459, 482). Grants to towns or other bodies endowed with local sovereignty form an exception to the rule. (Martin v. Waddell, 16 Pet. [U. S.] 367.) The grant, therefore, or patent given by Lieutenant-Governor Dongan to John Palmer in 1685, attempting to convey all this shore front or foreshore to low-water mark to the said John Palmer was contrary to the public policy and the law and, therefore, void. *297 That it was so considered and treated by the owners and lawyers and conveyancers in the past century is clearly indicated by the partition suit brought by John Cornwell against William Cornwell in 1809 involving these premises. The petition in the partition suit described the land as “ bounded southerly by the Atlantic Ocean.” The Commissioners appointed by the Court of Common Pleas described the southerly boundary as “ bounded southerly by the Atlantic Ocean.” The description of the lot here in question as made in the report of the Commissioners in this partition suit is as follows: “And we do allot to Nathaniel Ryder, who holds under John Mott, by and with the consent of John Mott, as appears by writing under his, the said John Mott’s hand for that purpose executed, all that certain lot in the first division of the beach, known and distinguished by lot number ten, bounded on the north by the marsh; on the east by lot number eleven; on the south by the ocean, and on the west by lot number nine, being sixteen rods wide as the said lot is staked out.” Bounding property by the ocean, or as here, “ bounded southerly by the Atlantic Ocean,” carries title no further than high-water mark, and excludes the foreshore. (Tiffany v. Town of Oyster Bay, 209 N. Y. 1.) There can be no doubt that under these partition suits the plaintiffs and their predecessors received no title to the foreshore. The property partitioned was limited by the high-water mark and all the proceedings and conveyances thereafter, down to and including the plaintiffs’, carried title no further. The first deed given after the partition decree, plaintiff’s Exhibit 18, described their property as “ bounded southerly by the Atlantic Ocean.” For a period of one hundred and one years, 1828 to 1929, this property has been “ bounded by the Atlantic Ocean ” high-water mark, in all descriptions. The lawyers and conveyancers for the past century have not all been wrong in considering the grant of 1685 as incapable under the law then and *298 now of conveying the foreshore to private individuals for private purposes. The fact that the owners and their attorneys, as well as the courts, have considered for more than a century that the title to these lands did not extend below high-water mark should lead this court to affirm these conclusions. (Mulry v. Norton, 100 N. Y. 424.) For these reasons I favor the affirmance of the judgments below. • In each action the judgment should be affirmed, with costs.