Werner, J.
Our recent decision in
Town of Brookhaven
v.
Smith
(188 N. Y. 74) very materially simplifies the question submitted to us for decision in the case at bar. In that case it was definitely settled that in this state a riparian owner whose land is bounded by navigable water has the right of access thereto from the front of his land, and that such right includes the construction and maintenance of a pier on the
land under water beyond high-water mark, for his own use or for the use of the public, subject to such general rules and regulations as Congress or the state legislature may prescribe for the protection of the rights of the public. So thorough was the discussion in that case of the principles involved-, and so exhaustive the citation of authorities bearing upon them, that we can now add nothing except to say that the doctrine there enunciated is as applicable to littoral owners whose lands front upon the surf-beaten shore of the open ocean, as to riparian owners wdiose lands border upon bays of the sea, inland lakes or other navigable waters.
It is clearly pointed out in the
Brookhaven
case that the rigid rules of the common law of England relating to littoral and riparian rights are not adaptable in every particular to our political and geographical conditions; that in adopting the common law of the mother country we did not incorporate into our system of jurisprudence any principles which are essentially inconsonant with our circumstances or repugnant to the spirit of our institutions; that
the jus privatum
of the crown, by which the sovereign of England was deemed to be the absolute owner of the soil of the sea and of the navigable rivers, was totally inapplicable to the conditions of our colonies when the common law was adopted by them and that this right, from the first settlement of our jirovince, seems to have been abandoned to the proprietors of the upland so as to have become a common right and thus the common law of the state.
The same reasons which underlie the decision in the
Brook-haven
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. Except in so far as the
jus privatum
of the crown has devolved upon littoral and riparian owners, that right now resides in the people in their sovereign capacity. This is the logical result of our decision in the
Brookhaven
case, and it is in harmony with the development of our history and the spirit of our institutions.
The bare statement of these propositions brings into thi foreground of the discussion the question at issue in the case at bar. Where is the line of demarcation between the rights of littoral and riparian owners on the one hand and the rights of the public on the other? That is obviously a question which cannot be answered with categorical precision in all its bearings. It may, however, be answered with sufficient definiteness to enable us to make a satisfactory disposition of the question which has been certified to us. “At the time this action was begun was there any right in the public to. pass over the beach between high and low-water mark at the defendant’s summer resort known as Midland Beach ? ”
This action was commenced in July, 1905. At that time the defendant held the land under water in front of its uplands by virtue of letters patent from the state bearing date' April 2nd, 1902, under which it acquired the right “ To erect on the lands under water herein granted a pier or piers and buildings of a substantial character,” but the grant was coupled with the condition “ that the said party of the second part (defendant), its successors and assigns, shall not make, erect or maintain, or cause or allow to be made, erected or maintained, any fence, building, excavation or other obstruction of any kind in or upon land lying between the lines of high and low water as they now exist, or hereafter shall exist, that shall in any manner obstruct, interfere with, inconvenience or prevent any person from or in crossing and re-crossing in any manner or way said land between high and low-water mark.”
It is apparent from the most cursory reading of this patent that if all its language were to be adopted in its strictly literal meaning, the condition would operate to annul the grant. It would have been impossible, of course, for the defendant to construct a pier or other structure of substantial character to extend from the land under water to the upland without obstructing to some degree the right of passage which the public had along the foreshore. It is necessary, therefore, to give the condition in the patent its reasonable and obvious meaning, and when that is done it matters but little whether
the defendant rests upon its letters patent or upon its legal right as a littoral owner. The result in either case is the same, and the peculiar language of the patent is referred to only because the referee, in one of his findings, emphasizes the fact that the defendant liad constructed its pier a year or two before it obtained its letters patent. It is enough to say that either as littoral owner or by virtue of its letters patent, the defendant had the right to construct and maintain a pier that was reasonably adapted to the purpose for which it was primarily intended, and that was to provide a means of passage from the upland to the sea. To the extent that the reasonable exercise of this right necessarily interfered with the right of the public to pass along the foreshore, the former was paramount and the latter was subordinate; and the logical corollary to that proposition is that just in so far as the attempted exercise of the littoral or riparian right passed the prescribed bounds of necessity and reason, the conditions were reversed and the right of passage along the foreshore remained the paramount right. That is so because the littoral or riparian owner, in his capacity as such, acquires only those rights in the foreshore which are necessary to enable him to make a reasonable use of his upland; and the principal attribute of such use is access to and egress from the open water. The defendant, therefore, had the right to erect and maintain a pier for the purpose of connecting its upland with the sea. Just so far as it was a necessary consequence of the reasonable exercise of that right to obstruct the foreshore and thus to limit the free and convenient passage of the public, the defendant’s rights are superior to all others save those reserved to Congress and the state legislature. To the extent that the defendant transcended these bounds, the rights of the public remain unaffected.
At this point in the discussion we must take note of some findings of the referee, which have an important bearing upon the question to be decided. These are to the effect that “in order to hinder, obstruct and prevent the public from passing over the pier to the plaintiffs’ premises the said defendant
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Werner, J.
Our recent decision in
Town of Brookhaven
v.
Smith
(188 N. Y. 74) very materially simplifies the question submitted to us for decision in the case at bar. In that case it was definitely settled that in this state a riparian owner whose land is bounded by navigable water has the right of access thereto from the front of his land, and that such right includes the construction and maintenance of a pier on the
land under water beyond high-water mark, for his own use or for the use of the public, subject to such general rules and regulations as Congress or the state legislature may prescribe for the protection of the rights of the public. So thorough was the discussion in that case of the principles involved-, and so exhaustive the citation of authorities bearing upon them, that we can now add nothing except to say that the doctrine there enunciated is as applicable to littoral owners whose lands front upon the surf-beaten shore of the open ocean, as to riparian owners wdiose lands border upon bays of the sea, inland lakes or other navigable waters.
It is clearly pointed out in the
Brookhaven
case that the rigid rules of the common law of England relating to littoral and riparian rights are not adaptable in every particular to our political and geographical conditions; that in adopting the common law of the mother country we did not incorporate into our system of jurisprudence any principles which are essentially inconsonant with our circumstances or repugnant to the spirit of our institutions; that
the jus privatum
of the crown, by which the sovereign of England was deemed to be the absolute owner of the soil of the sea and of the navigable rivers, was totally inapplicable to the conditions of our colonies when the common law was adopted by them and that this right, from the first settlement of our jirovince, seems to have been abandoned to the proprietors of the upland so as to have become a common right and thus the common law of the state.
The same reasons which underlie the decision in the
Brook-haven
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. Except in so far as the
jus privatum
of the crown has devolved upon littoral and riparian owners, that right now resides in the people in their sovereign capacity. This is the logical result of our decision in the
Brookhaven
case, and it is in harmony with the development of our history and the spirit of our institutions.
The bare statement of these propositions brings into thi foreground of the discussion the question at issue in the case at bar. Where is the line of demarcation between the rights of littoral and riparian owners on the one hand and the rights of the public on the other? That is obviously a question which cannot be answered with categorical precision in all its bearings. It may, however, be answered with sufficient definiteness to enable us to make a satisfactory disposition of the question which has been certified to us. “At the time this action was begun was there any right in the public to. pass over the beach between high and low-water mark at the defendant’s summer resort known as Midland Beach ? ”
This action was commenced in July, 1905. At that time the defendant held the land under water in front of its uplands by virtue of letters patent from the state bearing date' April 2nd, 1902, under which it acquired the right “ To erect on the lands under water herein granted a pier or piers and buildings of a substantial character,” but the grant was coupled with the condition “ that the said party of the second part (defendant), its successors and assigns, shall not make, erect or maintain, or cause or allow to be made, erected or maintained, any fence, building, excavation or other obstruction of any kind in or upon land lying between the lines of high and low water as they now exist, or hereafter shall exist, that shall in any manner obstruct, interfere with, inconvenience or prevent any person from or in crossing and re-crossing in any manner or way said land between high and low-water mark.”
It is apparent from the most cursory reading of this patent that if all its language were to be adopted in its strictly literal meaning, the condition would operate to annul the grant. It would have been impossible, of course, for the defendant to construct a pier or other structure of substantial character to extend from the land under water to the upland without obstructing to some degree the right of passage which the public had along the foreshore. It is necessary, therefore, to give the condition in the patent its reasonable and obvious meaning, and when that is done it matters but little whether
the defendant rests upon its letters patent or upon its legal right as a littoral owner. The result in either case is the same, and the peculiar language of the patent is referred to only because the referee, in one of his findings, emphasizes the fact that the defendant liad constructed its pier a year or two before it obtained its letters patent. It is enough to say that either as littoral owner or by virtue of its letters patent, the defendant had the right to construct and maintain a pier that was reasonably adapted to the purpose for which it was primarily intended, and that was to provide a means of passage from the upland to the sea. To the extent that the reasonable exercise of this right necessarily interfered with the right of the public to pass along the foreshore, the former was paramount and the latter was subordinate; and the logical corollary to that proposition is that just in so far as the attempted exercise of the littoral or riparian right passed the prescribed bounds of necessity and reason, the conditions were reversed and the right of passage along the foreshore remained the paramount right. That is so because the littoral or riparian owner, in his capacity as such, acquires only those rights in the foreshore which are necessary to enable him to make a reasonable use of his upland; and the principal attribute of such use is access to and egress from the open water. The defendant, therefore, had the right to erect and maintain a pier for the purpose of connecting its upland with the sea. Just so far as it was a necessary consequence of the reasonable exercise of that right to obstruct the foreshore and thus to limit the free and convenient passage of the public, the defendant’s rights are superior to all others save those reserved to Congress and the state legislature. To the extent that the defendant transcended these bounds, the rights of the public remain unaffected.
At this point in the discussion we must take note of some findings of the referee, which have an important bearing upon the question to be decided. These are to the effect that “in order to hinder, obstruct and prevent the public from passing over the pier to the plaintiffs’ premises the said defendant
maintained certain planks from spile to spile under the pier so as to form a fence barring passage ; and erected a shed on the platform extending to the sea end thereof; * * * ” and that the effect of these structures was to hinder and obstruct the passage of the public to and from the ■ plaintiffs’ premises. These findings, which are supported by the record, and which have been affirmed by the Appellate Division, conclusively establish the defendant’s usurpation of rights which it never acquired as littoral owner, either under its title to the uplands or as patentee by grace of the state and,
a fortiori,
determine that the defendant has invaded the right of the public. In this view of the case, it is evident that the conclusion of law found by the referee, and adopted by the Appellate Division, is not supported by the facts found, and that the question whether the public have any right to pass over the beach between high and low-water mark at the defendant’s summer resort, known as Midland Beach, must be answered in the affirmative.
The subject out of which this question arises is one of absorbing interest, which in other circumstances would justify an extended discussion of many incidental questions touched upon in the luminous briefs of counsel. All these related questions are so fully covered, however, by Judge Gray’s very exhaustive historical analysis of the subject, adopted by this court in the
JBrool&haven
case, that we may properly dispose of the case at bar with the utmost conciseness. It is unnecessary, therefore, to add anything further except to suggest that the plaintiffs are clearly entitled to maintain this action. Although the right of the public is the thing at issue, the plaintiffs as part of the public have made out a case of special injury and damage which it is the duty of the courts to redress by appropriate remedies. The referee has found that some of the unlawful acts of the defendant have caused special damage to the plaintiffs; and while the finding in that regard does not specifically refer to the defendant’s unauthorized obstruction of the public’s right of passage over the, beach or foreshore, it is a necessary inference from the other
facts found that the plaintiffs have suffered such special injury in that behalf as to entitle them to maintain this action.
The question certified is, therefore, answered in the affirma. tive; and the order of the Appellate Division and interlocutory judgment are reversed and a new trial granted, with costs to abide the event.
Cullen, Ch. J., Cray, Vann. Willard Bartlett, Hisoook and Chase, JJ., concur.
Order reversed, etc.