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In the Matter of the Application of The City of New York Relative to Acquiring Title Wherever the Same Has Not Been Heretofore Acquired for the Purpose of Establishing Thereon a Public Beach to All Land and Land under Water Not Heretofore Acquired by The City of New York for Park Purposes, Extending from Jacob Riis Park to the Westerly Line of Beach 25th Street, at Rockaway Beach, in the Borough of Queens, City of New York, Laid Out as a Public Beach upon the Map or Plan of the City of New York by Resolution Adopted by the Board of Estimate and Apportionment on February 29, 1924, as Amended by Orders of the Supreme Court of the State of New York, Second Judicial District, Dated October 16, 1925, and July 29, 1926, and Entered in the Office of the Clerk of the County of Queens October 19, 1925, and July 29, 1926, Respectively, so as to Relate to All Land and Land under Water Not Heretofore Acquired by The City of New York for Park Purposes, Extending from Jacob Riis Park to the Westerly Line of Beach 2d Street, at Rockaway Beach, in the Borough of Queens, City of New York, as Now Laid Out as a Public Beach upon the Map or Plan of the City of New York, in Accordance with Resolutions of the Board of Estimate and Apportionment, Adopted on June 19, 1925, and June 3, 1926. Roche's Beach, Inc., Assignee of Edward Roche and Herein, Appellant The City of New York
Hagarty, J.
In this condemnation proceeding relating to the taking of property for the purposes of a public beach, the appeal is from so much of the last partial and separate final decree as makes a nominal award for a part of damage parcel No. 823 and for damage parcels 761, 762, and 764-a, and as makes the awards for such parcels to unknown owners instead of to appellant. In our opinion, the claimant sustained its title to the lands under water to the southerly line of the taking, which is indisputably north of the high-water mark of 1879. The value of such lands should be predicated, not only upon the practicability of reclamation by artificial means, but upon the likelihood of emergence of the land in accordance with the cycle of change which prevails in that section of the coast, with allowance, however, for the fact that the same cycle of change, induced by violent disturbances of storms and tides, may cause or tend to cause future submergence or destruction. Excluded from that portion of damage parcel 823 in question here, for which an award is to be made to appellant, is so much thereof as lies in the beds of Beach 19th street and Beach 17th street as extended southerly, title to which is not in the appellant. The descriptions of the property in the deeds which conveyed title to the appellant’s predecessors do not include title to the beds of such streets or their extensions to the ocean. The record does not establish the appellant’s claim of title by means of adverse possession. The testimony of Newburg, adduced at a hearing of claims other than those of the appellant, was not binding upon it and should not have been included in this case on appeal.
The last partial and separate final decree, in so far as it makes an award of nominal damages to unknown owners for that part of damage parcel 823 which lies between the easterly and westerly bounds of appellant’s property, should be reversed on the law and
[241] the facts and the matter remitted for a further hearing, costs to abide the event. In all other respects the decree, in so far as an appeal is taken, should be affirmed, without costs.
Lazansky, P. J., Carswell and Davis, JJ., concur; Taylor, J., in separate opinion, dissents from the reversal as to damage parcel No. 823, and votes for affirmance as to that; otherwise, he concurs.
