Hard v. Blue Points Co.

170 A.D. 524, 156 N.Y.S. 465, 1915 N.Y. App. Div. LEXIS 6042

Opinion

Putnam, J.:

Defendant’s ownership of lands under water in Great South bay did not enable it to obstruct the foot or southern extremity of West street in West Sayville, L. I. From this street the public (and specially the plaintiff, as an abutter on the street down to the high-water line) had a right to pass out to the navigable waters of the bay, and back from the bay landwards to the street, which right of ingress and egress extended over the place where the land highway meets the navigable waters. (Matter of City of New York [Main St.], 216 N. Y. 67.) Though defendant’s structures stood on piling upon lands under water, they appropriate common property, as they tend to stop this free continuous passage, and are, therefore, actionable. Plaintiff, as a riparian owner, and also having title to the middle line of West street, along which her lands extend to high water, has shown such special damage in the nature of substantial and peculiar injury different from that of the general public as entitles her to an injunction. (Joyce Inj. § 1082a.) The requirement to show special injury and loss does not call for such exact amounts as she might have to prove in an action to, recover damages. (Wakeman v. Wilbur, 147 N. Y. 657; Ackerman v. True, 175 id. 353.) The fact that defendant has large capital here invested, so that it will sustain loss by having to withdraw its encroachment, does not justify the trespass or warrant withholding an injunction. (Whalen v. Union Bag & Paper Co., 208 N. Y. 1.)

The judgment is, therefore, affirmed, with costs.

Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.

Judgment affirmed, with costs.