Stewart v. Turney

Kruse, P. J.: The plaintiffs claim the exclusive right to hunt upon certain lands adjoining Cayuga lake, including the foreshore between high and low-water mark. This claim is based upon a lease from the owner giving them the exclusive right to hunt and trap upon such adjoining land. The learned judge at Special Term held with the plaintiffs and made a decision enjoining the defendants from hunting and trespassing upon the same (117 Misc. Rep. 398). Judgment was entered upon such decision and the defendants appeal. It appears that the defendants on various occasions hunted wild ducks from the foreshore. For this purpose a frail and temporary hiding place for the hunter, made of material such as flag or brush high enough to conceal the crouched hunter, was constructed, called by hunters a hide. Artificial decoys were set out on the waters to lure the wild ducks within reach of the hunters’ guns. Boats were used in setting the decoys and picking them up after the hunt was over and collecting killed or wounded birds. When not in use the boats were drawn partly out of the water ‘onto the beach. The hunters stood and walked along the water’s edge and crouched behind the hide, but none of these acts was done upon the upland. Who constructed the hide is not clear; it was at the water’s edge. No complaint is made of any specific act of the defendants in [488] making or using the hide, or anything else, except the general claim that the plaintiffs have the exclusive right to hunt there and the defendants have no such right at all, and defendants are thus broadly enjoined by the terms of the judgment. The premises seem to have been posted as a private preserve in accordance with law, and if the title of the upland owner had included the foreshore there might be no difficulty in upholding the judgment. (12 R. C. L. 687, 689, §§ 5, 6, and cases there cited.) But the defendants contend that the title of the bed of the lake and the foreshore is in the State, and the decision rests upon the proposition that the owner of the upland as a riparian owner has the exclusive right as against the defendants to utilize the foreshore in hunting, although the title thereto is in the State, and such is the plaintiffs’ position here. It is undoubtedly true that the owner of the upland has the right of access therefrom over the foreshore to the waters of the lake for navigation, fishing and bathing and such other uses as commonly belong to such ownership. (Town of Brookhaven v. Smith, 188 N. Y. 74; Barnes v. Midland R. R. Terminal Co., 193 id. 378; Tiffany v. Town of Oyster Bay, 234 id. 15.) And I think he may utilize the foreshore in hunting, but such use is not absolute and exclusive. The public at large also have the right to use the same. (Murphy v. City of Brooklyn, 98 N. Y. 642, 644, and cases above cited.) In the Murphy case, where it was held that the foreshore was not a highway, it was said: “ Every one can, however, unless the public authorities by lawful action interfere, go upon the seashore between high and low-water mark, to fish, to bathe, or for any other lawful purpose.” The question has more frequently arisen in cases where the tide ebbs and flows. Such was the Brookhaven case. But in the Barnes case it was held that the doctrine of the Brookhaven case was applicable to inland lakes and other navigable waters, and as regards the rights of the public it was said: “ The same reasons which underlie the decision in the Brookhaven case as to the rights of littoral and riparian owners, apply with even greater force to the right of the public to use the foreshore upon the margin of our tide waters for fishing, bathing and boating, to all of which the right of passage may be said to be a necessary incident.” And I think this is true of the shores of our navigable inland lakes. The rights of the public are, however, subordinate to the riparian rights reasonably exercised by the owner of the upland in connection with the use of his premises. It may not always be easy to determine the relative rights in a given case where there is a conflict between a riparian owner and the public. But here [489] there was no interference with the right of access. The defendants did not utilize any structure belonging to plaintiffs or interfere in any way with the riparian rights of the upland owner. If the defendants had attempted to use any hunting lodge or any other structure or improvement which the plaintiffs had made a different question would be presented. In Oelsner v. Nassau Light & Power Co. (134 App. Div. 281), where it appears the defendant had erected telephone poles on the shore of an arm of Long Island sound between high and low-water marks, seventeen or eighteen of which were in front of the plaintiff’s uplands, set 100 feet apart, a judgment in favor of the upland owner restraining the maintenance of the poles was reversed. It was held that in order to maintain the action it must appear that there was some substantial interference with the easement of the upland owner. The decision under review proceeds upon the broad ground that the plaintiffs have the exclusive right to hunt upon these premises, including the foreshore, and that the defendants have no right to utilize the foreshore in hunting wild fowl upon the lake, as was done by them. This, I think, is erroneous. The judgment should, therefore, be reversed and the complaint dismissed, with costs. All concur, Clark, J., in a separate memorandum, except Hubbs and Davis, JJ., who dissent in an opinion by Davis, J., and vote for affirmance.