Houghton, J.:
In 1893 the Lake George Camp Association purchased a tract of land bordering on Lake George, and laid it out into blocks and building lots, with avenues and streets, and subsequently sold lots abutting thereon, with a right of way over such avenues and streets, reserving title to the beds of the streets in itself. One of these avenues was known as White avenue, and ran to the lake shore between blocks designated Nos. 10 and 13. The defendant purchased fou’r lots abutting on another avenue, and not bordering on the lake. Some of the.streets and avenues, upon which houses [716] were built, were worked as roadways, and it appears that others, including "White avenue, as it approached the water, were not defined except by the maps according to which purchasers bought. A sea wall was built along the shore. There is some- dispute as to its location, but it was out in the lake at least'as far as low-water mark. Beyond this wall a few inches and directly across what Would have been White avenue had it "extended into the water, and, as the court finds, also in front of a portion of block 13, the defendant built a boathouse and dock adjacent thereto for his own private use. By mesne conveyances the plaintiffs acquired title to all the interest of the association in the land which remained after the conveyance of such lots as had been sold, which included the title to the bed of White avenue and the whole of blocks 10 and 13.
It was conceded on the trial, and found by the court, that the waters of Lake George are public waters, and that the owners of the upland have title only to low-water mark, the title to the bed of the lake being in. the people of the State.
The plaintiffs brought this' action in ejectment, pleading that they were the owners of the strip of land known as White avenue, and alleging that the defendant withheld the possession of some part thereof from them and demanding possession with damages for withholding the"same. On the trial or at its conclusion the court •permitted an amendment of the complaint embracing an allegation of ownership in plaintiffs of block 13 and that the defendant’s boathouse and pier were adjacent thereto. The action was tried before the court without a jury and the plaintiffs were given judgment ejecting the defendant from that part of his boathouse and pier out in the lake beyond low-water mark adjacent to block 13, but refused such judgment so far as the same was adjacent to White avenue. The defendant appeals from the judgment as rendered, and the plaintiffs appeal because the court refused to give the full relief demanded.
We are of the opinion that the complaint should have been dismissed on the ground that an action of ejectment is not the proper remedy. We concur in thé conclusion of the learned trial court that the streets and avenues laid out upon the tract of land by the plaintiffs’ predecessors in title were dedicated to the public use. By the various maps circulated by the association and from- the [717] deeds which it gave it is apparent that it was the intention to dedicate the avenues and streets on the plot to the use of the lot owners and the public. Title to the beds of the streets, however, was expressly reserved in the deeds which were given and the plaintiffs have succeeded to that title and own-all of the streets subject to the public use. Had the defendant erected his dock -and boathouse in White avenue, thus taking exclusive possession and imposing upon the land a burden inconsistent with the public easement, the plaintiffs could have maintained ejectment therefor. (Westlake v. Koch, 134 N. Y. 58.) So, too, if the boathouse and dock were upon block 13, the plaintiffs being the owners.could have maintained ejectment. But neither the dock nor the boathouse which the defendant erected is on lands which belong to the plaintiffs, but both are built upon lands which belong to the people of the State, and such is the express finding of the court. While the owners of uplands have the right of access to the water and the right to build such docks and piers from such lands into the water as will not interfere with navigation, this right is only an appurtenance or easement incident to the ownership of the uplands. If a private person builds any structure which interferes with this littoral right of the owner of the upland he can by appropriate action cause its removal. Hot, however, by ejectment, for the right to eject depends upon superior title to the land itself. Such rights incident to the ownership of the shore are incorporeal hereditaments. Ejectment does not lie for an incorporeal hereditament but only for a corporeal hereditament of which a sheriff can deliver possession. (Rowan v. Kelsey, 18 Barb. 484; Moore v. Brown, 139 N. Y. 127; Butler v. Frontier Telephone Co., 186 id. 486.) It is apparent that the sheriff could not put the plaintiffs in possession of lands not belonging to them but belonging to the people of the State, whatever the character of the defendant’s occupation might be.
Town of Brookhaven v. Smith (188 N. Y. 74) and Barnes v. Midland R. R. Terminal Co. (193 id. 378), upon which the plaintiffs rely, are not authorities sustaining the proposition that an action of ejectment lies for an interference with littoral rights. In the former the plaintiff owned the land under water by grant from the crown and the action was for trespass, and in the latter case the action was in equity to restrain the defendant from inter[718] fering with the passage of the public over the beach between high and low-water mark. An action in ejectment was held to lie in Champlain, & St. Lawrence R. R. Co. v. Valentine (19 Barb. 484) only because the State had granted to the plaintiff the land under'water in Lake Champlain below low-water mark.
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Houghton, J.:
In 1893 the Lake George Camp Association purchased a tract of land bordering on Lake George, and laid it out into blocks and building lots, with avenues and streets, and subsequently sold lots abutting thereon, with a right of way over such avenues and streets, reserving title to the beds of the streets in itself. One of these avenues was known as White avenue, and ran to the lake shore between blocks designated Nos. 10 and 13. The defendant purchased fou’r lots abutting on another avenue, and not bordering on the lake. Some of the.streets and avenues, upon which houses [716] were built, were worked as roadways, and it appears that others, including "White avenue, as it approached the water, were not defined except by the maps according to which purchasers bought. A sea wall was built along the shore. There is some- dispute as to its location, but it was out in the lake at least'as far as low-water mark. Beyond this wall a few inches and directly across what Would have been White avenue had it "extended into the water, and, as the court finds, also in front of a portion of block 13, the defendant built a boathouse and dock adjacent thereto for his own private use. By mesne conveyances the plaintiffs acquired title to all the interest of the association in the land which remained after the conveyance of such lots as had been sold, which included the title to the bed of White avenue and the whole of blocks 10 and 13.
It was conceded on the trial, and found by the court, that the waters of Lake George are public waters, and that the owners of the upland have title only to low-water mark, the title to the bed of the lake being in. the people of the State.
The plaintiffs brought this' action in ejectment, pleading that they were the owners of the strip of land known as White avenue, and alleging that the defendant withheld the possession of some part thereof from them and demanding possession with damages for withholding the"same. On the trial or at its conclusion the court •permitted an amendment of the complaint embracing an allegation of ownership in plaintiffs of block 13 and that the defendant’s boathouse and pier were adjacent thereto. The action was tried before the court without a jury and the plaintiffs were given judgment ejecting the defendant from that part of his boathouse and pier out in the lake beyond low-water mark adjacent to block 13, but refused such judgment so far as the same was adjacent to White avenue. The defendant appeals from the judgment as rendered, and the plaintiffs appeal because the court refused to give the full relief demanded.
We are of the opinion that the complaint should have been dismissed on the ground that an action of ejectment is not the proper remedy. We concur in thé conclusion of the learned trial court that the streets and avenues laid out upon the tract of land by the plaintiffs’ predecessors in title were dedicated to the public use. By the various maps circulated by the association and from- the [717] deeds which it gave it is apparent that it was the intention to dedicate the avenues and streets on the plot to the use of the lot owners and the public. Title to the beds of the streets, however, was expressly reserved in the deeds which were given and the plaintiffs have succeeded to that title and own-all of the streets subject to the public use. Had the defendant erected his dock -and boathouse in White avenue, thus taking exclusive possession and imposing upon the land a burden inconsistent with the public easement, the plaintiffs could have maintained ejectment therefor. (Westlake v. Koch, 134 N. Y. 58.) So, too, if the boathouse and dock were upon block 13, the plaintiffs being the owners.could have maintained ejectment. But neither the dock nor the boathouse which the defendant erected is on lands which belong to the plaintiffs, but both are built upon lands which belong to the people of the State, and such is the express finding of the court. While the owners of uplands have the right of access to the water and the right to build such docks and piers from such lands into the water as will not interfere with navigation, this right is only an appurtenance or easement incident to the ownership of the uplands. If a private person builds any structure which interferes with this littoral right of the owner of the upland he can by appropriate action cause its removal. Hot, however, by ejectment, for the right to eject depends upon superior title to the land itself. Such rights incident to the ownership of the shore are incorporeal hereditaments. Ejectment does not lie for an incorporeal hereditament but only for a corporeal hereditament of which a sheriff can deliver possession. (Rowan v. Kelsey, 18 Barb. 484; Moore v. Brown, 139 N. Y. 127; Butler v. Frontier Telephone Co., 186 id. 486.) It is apparent that the sheriff could not put the plaintiffs in possession of lands not belonging to them but belonging to the people of the State, whatever the character of the defendant’s occupation might be.
Town of Brookhaven v. Smith (188 N. Y. 74) and Barnes v. Midland R. R. Terminal Co. (193 id. 378), upon which the plaintiffs rely, are not authorities sustaining the proposition that an action of ejectment lies for an interference with littoral rights. In the former the plaintiff owned the land under water by grant from the crown and the action was for trespass, and in the latter case the action was in equity to restrain the defendant from inter[718] fering with the passage of the public over the beach between high and low-water mark. An action in ejectment was held to lie in Champlain, & St. Lawrence R. R. Co. v. Valentine (19 Barb. 484) only because the State had granted to the plaintiff the land under'water in Lake Champlain below low-water mark.
¡Notwithstanding the claim of the plaintiffs on the trial and upon the argument on' appeal that the action- is purely one of ejectment and that it is maintainable as such, it is suggested that the action, may be treated, -in view -of the answer of defendant, as an equitable action for the removal of structures interfering with plaintiffs’ right in the Waters of the lake. The defendant plead several special defenses, all, however, tending to defeat the plaintiffs’ title. All' the evidence introduced upon the trial was pertinent to an action of ejectment. At the close of the plaintiffs’- case the defendant moved for-dismissal of the complaint on the ground that the plaintiffs had shown no title to the property in question, and in his requests to the court to find he specifically asked the court to rule that the action was not maintainable and that an incorporeal hereditament could not be recovered in an action of ejectment. The. learned' counsel for -the plaintiffs in his brief says that the gist of the defendants objection to recovery by plaintiffs was that the dock (as well as the boathouse) was not proved to be on land belonging to plaintiffs. There Was not,.therefore, either on the trial or the argument on appeal any . abandonment by plaintiffs of the position that ejectment would lie, or surrender by the defendant of h-is attitude that ejectment was not the proper remedy, and it would .be doing violence to the pleadings and the- course of .the trial to treat the present action as one in equity when all parties have consistently maintained that it was one at law. Courts have become more and" more liberal in the treatment of pleadings and many strict.rules with respect to various forms of, action have been abrogated, but they have not yet gone -so far as to abolish the distinctive features of an.action of ejectment. That it still retains its especial characteristics is illustrated by the discussion of the subject throughout •the opinion in Butler v. Frontier Telephone Co. (supra).
The plaintiffs having failed to prove that the defendant’s dock nnd boathouses were upon lands belonging to them, the learned trial court erroneously granted them any relief whatever. '-
[719] The judgment must be reversed and a new trial granted, with costs to the appellant defendant .to abide the event.
All concurred, except Kellogg, J., dissenting in opinion, in which Smith, P. J., concurred.