Gucker v. Town of Huntington

Taylor, J. Action was brought originally by the plaintiffs, here respondents, to cancel, as a cloud on title, three certain quitclaim deeds purporting to release rights in a certain sand bar under the waters of Centerport harbor, an arm of Long Island sound, in which the tide ebbs and flows, and to obtain relief in equity for the alleged invasion of those rights by the defendant-appellant The Town of Huntington and defendant DeBrabant, who, in 1930, it was alleged by the plaintiffs who claimed title to the sand bar, raised, by dredging operations in the harbor and the deposit of materials therefrom upon the sand bar, the level of that bar so that it was at least one foot above high water and not passable for small boats at high water, as it had been for a long period before 1930. The plaintiffs, upland owners, originally alleged title in themselves — each to a part of the locus of the sand bar, by accretion. (See Mulry v. Norton, 100 N. Y. 424.) Upon the first trial each complaint was dismissed at Special Term and judgment accordingly was entered in each action. On appeal to this court each judgment was affirmed upon the ground that plaintiff (or plaintiffs) had failed to prove his (or their) alleged title; and this court left it open to the plaintiffs to enforce their undoubted riparian rights in another action. (Gucker v. Town of Huntington, 241 App. Div. 494.) The plaintiffs appealed from the latter determination to the Court of Appeals, which reversed that determination and ordered a new trial of these actions. (Gucker v. Town of Huntington, 268 N. Y. 43.) The highest court held in effect that it was proper to determine and enforce the plaintiffs’ riparian rights in these actions (Id.) and such ruling became the law of these cases. The new trial in each action resulted in a judgment in favor of the given plaintiff, here respondent, and against defendant town, here appellant, in effect directing the restoration of the status quo ante of the sand bar, and granting other relief, but dismissing the complaint as to defendant DeBrabant, who was the owner of property abutting on Centerport harbor and lying generally to the north of the properties of the plaintiffs. The judgment in each action included a provision which in effect directed defendant town to restore also a small cove wholly surrounded by property belonging to defendant DeBrabant, which cove was a mosquito breeding place covered by water only at high tide, and which the town had permitted defendant DeBrabant to [12] fill in. Upon the trial plaintiffs’ counsel expressly disavowed any claim related to the filling of that (DeBrabant) cove. From the judgment in each action defendant The Town of Huntington appeals. No plaintiff appeals from the dismissal of the complaint as to defendant DeBrabant. An order granting an extra allowance of $500 to plaintiff (or plaintiffs) in each action appears in the record. There is no appeal therefrom, but a direction for such allowance appears in each judgment and is reviewable here. There is no lawful basis for the award of an extra allowance in any of the actions. (Civ. Frac. Act, § 1513, subd. 2.) Each action was indeed difficult and extraordinary, and in each a defense was interposed. (Id.) The proof of the value of the subject-matter in each case, however (Id.), was legally insufficient to warrant a finding fixing the value of the riparian rights of the given plaintiff, which (Gucker v. Town of Huntington, supra) constitute the subject-matter of the action. The claimed proof of such value is contained in the testimony of an expert witness called by the plaintiffs, who gave an opinion, based upon a factual element, in effect that a public bathing beach would be established upon the raised sand bar. This element as matter of law destroyed his testimony as a basis of a finding of value of the plaintiffs’ riparian rights, which defendant town invaded in the raising of the sand bar, and made legally improper the award of an extra allowance. Each judgment appealed from should be modified by striking therefrom the provision for an extra allowance. The provision in each judgment which in effect directs the restoration of the (DeBrabant) small cove by defendant town is improper and unwarranted in view of the express disavowal by plaintiffs’ counsel on the trial of any claim related to the filling of that cove. The judgment in each case should be modified, therefore, by striking therefrom that provision. The plaintiffs, as upland owners, are now seeking to enforce their riparian rights. Their claim of title, formerly asserted under the doctrine of Mulry v. Norton (supra) to the sand bar was disallowed by this court (Gucker v. Town of Huntington, 241 App. Div. 494, supra, at p. 497), with the approval of the highest court (268 N. Y. 43, supra, at p. 51). Nevertheless, in the several decisions of the trial justice are findings of fact and conclusions of law, indicated infra, which are irrelevant upon the present theory of the actions and which should be reversed, as they bear upon plaintiffs’ original claim, thus disallowed, of title to the sand bar and to the land under water between plaintiffs’ uplands and that bar, by accretion. There are also other findings of fact, indicated [13] infra, to the effect that the sand bar is “ adjacent ” and “ contiguous ” to plaintiffs’ uplands. These latter should be modified by striking from each the therein found fact that the sand bar is thus “ adjacent ” and “ contiguous.” Upon the undisputed proofs it is neither “ adjacent ” nor “ contiguous ” to those uplands, from which it is separated by tide water — more at high tide and less at low tide. There are also conclusions of law, indicated infra, to the effect that defendant town owns only lands under the navigable waters of Centerport harbor, and that plaintiffs own lands under the unnavigable waters thereof. Such conclusions should be reversed as contrary to law; for the conceded title of defendant town to land under the waters of the bay, subject to the rights of the public and of the plaintiffs as upland owners, extends to mean high-water mark. (Sage v. Mayor, 154 N. Y. 61, 69, 70; Fulton L., H. & P. Co. v. State of N. Y., 200 id. 400, 412.) Plaintiffs’ title to their uplands does not extend below that mark. In the Henry J. Gucker action there is a conclusion of law related to the claimed legal right of that plaintiff to erect a frame structure on the sand bar, which conclusion is contrary to law and should be reversed. The judgment in each action should be modified by striking therefrom (1) the provision for an extra allowance to the plaintiffs, and (2) so much of the direction to defendant town to restore the sand bar and the (DeBrabant) smaE cove as contemplates the restoration of that cove, and as thus modified it should be affirmed, without costs. The foEowing findings of fact and conclusions of law should be reversed: In the Henry J. Gucker suit, findings of fact 11 and 21 and conclusions of law 1 and 9. In the Koch suit, findings of fact 11 and 20 and conclusions of law 3 and 8. In the Bunce suit, findings of fact 10 and 19 and conclusions of law 3 and 8. In the Albert Gucker suit, findings of fact 11 and 20 and conclusions of law 3 and 8. That part of any finding of fact or conclusion of law in which it is found that the uplands of any plaintiff are “ adjacent ” or “ contiguous ” to the sand bar should be reversed. Lazansky, P. J., and Johnston, J., concur; Hagarty, J., concurs except as to the striking out of the direction to defendant town to restore the sand bar and as to the striking out of the provision for an extra allowance, as to which, he. dissents. As to the restore^ [14] tion of the DeBrabant cove, plaintiffs state that they have no objection to allowing it to remain as it is. Davis, J., dissents in part and votes for reversal and a new trial, with opinion.