This action is in trespass, for building a pier upon certain lands under water, in the Great South bay; of which the plaintiff, the town of Brookhaven, is seized in fee, under crown grants made by royal governors in the years 1666, 1686 and 1693. The appellant Smith is the owner of a piece of upland, bounded on high water mark, by title derived under a crown grant made to William Nicoll in 1697. From this upland a pier, built upon piles, extended for about 150 *Page 77 feet into and over the waters of the bay; which was owned and used by Smith and the other defendants for their greater convenience and facility in entering and in leaving their pleasure boats. Post, who is joined with the town as a party plaintiff, is its lessee. I understand that the plaintiffs conceded that the dock, or pier, was suitable enough for the purpose and, regarded, merely, as a structure, unobjectionable, and that their contention is that, without their consent, the defendants could not erect and maintain it. The defendants claim that, in erecting the pier, they have but lawfully exercised such rights as appertained to their ownership of the upland and as were necessary, in order to gain access to navigable waters. The question has been considered and decided below in the light of the rule of the common law of England; as the same was at the time of the grants and as it construed the rights of a riparian owner. It was held that these grants, having been confirmed by the constitution of this state, constituted contracts, the obligations of which the state cannot impair, and that, therefore, they are to be protected to the extent that they would have been, had "the Sovereign of Great Britain continued the owner of the soil." In this view the riparian owner is accorded no right, in the absence of a license therefor, to build anything below high water mark and "has no higher rights than those of the General Public." It is contended upon the authorities, and with reason, that so absolute was the character of the crown proprietorship, if the owner of lands in England, upon the tide water of the sea, or of navigable rivers, constructed a wharf, or a dock, beyond high water mark, his structure, if obstructing the public right of navigation, or the jus publicum, could be abated as a nuisance; or if a mere intrusion upon the jusprivatum of the sovereign, as a purpresture, it was, equally, subject to removal at the pleasure of the crown. (See Gould on Waters, sec. 167; Hale's de Portibus Maris, 85; Atty. Gen'l v.Richards, 2 Anstr. 603; Shively v. Bowlby, 152 U.S. 1.) It is insisted that this rigid common-law doctrine, upon the subject of a riparian owner's rights, should control *Page 78 our present decision; notwithstanding that this court has, in several instances, expressed, and quite deliberately, a rule of interpretation, which gives a practical value, or utility, to the riparian owner's conceded right of access to the navigable part of the body of water in front of his upland. I cannot agree that, in construing these grants of lands under the waters of the bay, we are bound to hold with the doctrine of the common law of England, as to the exclusive nature of the grantee's possession and as to his right to restrict the enjoyment of the riparian owner's right of access. The evidence of the common law, so far as it has not been declared in English statutes, we find in decisions of English courts rendered in existing controversies and those decisions will be given their due effect here, when the law has not been changed by our statutes; unless new conditions, or a different public policy, demand that the rule contended for be modified by our courts in its application. Different political and geographical conditions may justify modifications and whether common-law rules will be followed strictly by our courts will, necessarily, where no vested rights are actually concerned, depend upon the extent to which they are reasonable and in accord with our public policy and sentiment. In not applying, in all its strictness, the common-law doctrine, as declared by the English courts, this court has only interpreted the rule in a juster and more equitable sense and has affected no vested rights. That the town of Brookhaven, under its grants, acquired the title to the particular lands under water of the bay was settled by the decision in its case against Strong (60 N.Y. 56); but it took and held the thing granted in its corporate political capacity, and as the representative of the crown, or of the colonial government, to be administered for the public good. (De Lancey v. Piepgras, 138 N.Y. 26.) Upon the organization of the state government, it continued to hold the soil of the bay in that capacity, and, representatively, for the benefit of the members of the community. Whatever its rights acquired by the grant, they were and are, nevertheless, subject to the public *Page 79 rights of navigation and to rights of access of riparian owners. These rights have ever existed and, with respect to the latter, their nature and extent, when brought into question in this state, were not necessarily to be measured by English standards. The proprietary rights of the town were, and they must continue to be, subject to what, under the circumstances, is decided to be a reasonable exercise by the riparian owner of his right of access to the navigable waters of the bay. The argument that the measure of the right of the riparian owner to the use of the foreshore, or land below high-water mark, for purposes of access to the bay, must be ascertained by reference to what was the rule at common law, at the time of the grants, in my opinion, is unsound. The adoption by the people of this state of such parts of the common law, as were in force on the 20th day of April, 1777, does not compel us to incorporate into our system of jurisprudence principles, which are inapplicable to our circumstances and which are inconsistent with our notions of what a just consideration of those circumstances demands. The common law of England, upon the subject of the rights of riparian owners, has but an imperfect application to the situation in a state like this, with its numerous large navigable bodies of waters, in bays, rivers and inland lakes. (See Brown v.Scofield, 8 Barb. 239; People ex rel. Loomis v. CanalAppraisers, 33 N.Y. 461.) To borrow the language of Judge BRONSON, in his opinion in Starr v. Child, (20 Wend. 149), "no doctrine is better settled than that such portions of the law of England, as are not adapted to our condition, form no part of the law of this state." Such as were inconsistent with the spirit of our institutions, or had special reference to the physical conditions of a country widely differing from our own, never became a part of our law, upon the organization of this state. (Lowber v. Wells, 13 How. Pr. 456; People ex rel. Loomis v.Canal Appraisers, supra.) We have but to consider the position of Great Britain, as an island, with short rivers, navigable only as far as the tide flows and ebbs, and a reason for the rigidity of the rule early asserted as to the extent *Page 80 of the rights attaching to riparian ownership may appear, in the apprehension of the "straitening of the port by building too far into the water." (From Hale's de Portibus Maris.) Our position is different, physically and governmentally.
The jus privatum of the crown, by which the English king was deemed to own the soil of the sea and of navigable rivers, in his own right, rather than as a sovereign holding it in trust for his people, however applicable to the conditions in Great Britain, were totally inapplicable to the situation of the colonists of this country. In Gould on Waters, the author remarks, as to this, that "there is no evidence that the jus privatum * * * was ever asserted in the colony as the right of the Crown, or that it has, until recently, been claimed by the States; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the land from the first settlement of the province and exercised by them to the present day, so as to have become a common right and thus the common law." (3d ed. sec. 32).
I may observe, in passing, that in England the common-law rule, which left the riparian owner without any remedy, when his right of access was destroyed by public works, has been modified, within recent years. (See Buccleuch v. Metrop. B'd of Works, L.R. [5 Eng. Ir. App.] 418.)
It is a matter of general observation, of which judicial notice may wisely be taken, that riparian owners everywhere upon the numerous navigable bodies of waters within the territorial limits of this state have made their easement, or right of access, practical and available by the construction of docks, piers, or wharfs, and have done so without interference by the state, where superior public rights have not been obstructed. These interests must be very large and if we shall hold with the English common-law doctrine, that they are purprestures, or unlawful encroachments upon the proprietary rights of the state, as would follow, if we affirm this judgment, and that they are removable at pleasure, it would result in causing a very grave loss. Such a decision would be *Page 81 to ignore what has been believed to be a common right, within numerous adjudications of our courts.
In the early case in this court of Gould v. Hudson RiverR.R. Co., (6 N.Y. 522), it was held, upon the authority ofLansing v. Smith, (8 Cow. 146), that a riparian owner on the Hudson river had no private right, or property, in the waters, or in the shore, between high and low-water mark. In that case the plaintiff sought to recover compensation from the defendant; which, pursuant to a grant from the legislature, had constructed its railroad along the shore between high and low-water mark and, thereby, had cut off his communication with the river. The principle of that decision, as bearing upon the authority of the legislature to deprive abutting owners upon streets of their easements, came under consideration in the case of Kane v.N.Y. Elev. R.R. Co., (125 N.Y. at p. 184), and it was observed, with respect to the case, "that it has been frequently criticised and cannot be regarded as a decisive authority upon the point adjudged therein." Judge ANDREWS points out that in Lansing v.Smith, upon which the Gould case was decided, the particular question was reserved by the chancellor. In Rumsey v. N.Y. N.E.R.R. Co., (133 N.Y. 79), the plaintiffs sought to recover damages to their uplands, sustained through the act of the defendant in cutting off their access to the river by the construction of its roadbed across the water front. The decision was predicated upon the nature and extent of the plaintiffs' rights as "ordinary riparian owners on the banks of navigable rivers" and held, with reference to the Gould case, which had been cited by the defendant as a precedent, as in the KaneCase, (supra), that it was not to be followed. The language of the opinion was that it had "been frequently criticised and questioned and, it is believed, has never been fully acquiesced in by the courts, or the profession, as a decisive authority, or a correct exposition of the law respecting the rights of riparian owners." The rule, as it had been enunciated by the Supreme Court of the United States in the case of Yates v. Milwaukee, (10 Wallace 497), was adopted by this court in Rumsey's case as *Page 82 correctly expressing the right of a riparian owner; whether his title "extends beyond the dry land or not, he is certainly entitled to all the rights of a riparian proprietor, whose land is bounded by a navigable stream, and among these rights are access to the navigable part of the river from the front of his lot, the right to make a landing wharf, or pier, for his own use or for the use of the public, subject to such general rules and regulations as the legislature may see proper to impose for the protection of the rights of the public." Later, this doctrine, so explicitly asserted in the Rumsey Case, (supra), was emphatically reasserted in the case of Saunders v. N.Y.C. H.R.R.R. Co., (144 N.Y. 75, 87). There the question concerned the rights of the owners of lands upon the Hudson river as against the defendant, whose railroad, constructed over the foreshore, cut off convenient access to the river, and it was held that "what these rights are has been decided in the RumseyCase, (133 N.Y. 79). * * * They embrace the right of access to the channel, or navigable part of the river, for navigation, fishing and such other uses as commonly belong to riparian ownership, the right to make a landing wharf or pier for his own use, or for that of the public, with the right of passage to and from the same with reasonable safety and convenience." Quite recently, again, in the case of Thousand Islands Steamboat Co. v. Visger, (179 N.Y. 206), the rule stated in the RumseyCase, (supra), and restated in the Saunders Case, (supra), was reasserted with respect to the rights of riparian owners, in the following language: "As riparian owners, Cornwall and Crossmon, originally, in building a dock out into the river, but exercised the right, at all times, conceded to such ownership. The proprietors of lands upon navigable waters are entitled to the right of access to the navigable part of the river and to the right to make a landing wharf, or pier, for their own use, or for the use of the public, subject to such general rules and regulations as the Legislature may see proper to impose," (citing 3 Kent's Com. 451 and the Yates and Rumsey cases).
It is urged, however, with respect to these cases that the *Page 83 particular question in this case was not presented in either, namely: the right to construct a pier into the river, and, therefore, that what was said in the opinions should not be conclusive upon us in our present discussion. While it may be true that what was said, as to the measure, or substance, of the riparian owner's right of access from his upland to the navigable body of water in front of it, was not essential to the decision of the precise issue, it was, nevertheless, the deliberate and careful expression of an opinion as to that right and one not altogether impertinent to the decision of the particular case. As establishing the rule of law in this state upon the extent of a riparian owner's right, the decision in the Rumsey case has been followed, and acted upon, by the Appellate Division of the Supreme Court, in at least three of the judicial departments. (City of Brooklyn v. Mackay, 13 App. Div. 105; Jenks v.Miller, 14 ib. 474; People ex rel. Cornwall v. Woodruff, 30 ib. 43; People v. Mould, 37 ib. 35; Town of North Hempstead v. Gregory, 53 ib. 350; City of Buffalo v. D., L. W.R.R.Co., 68 ib. 488.) It was recognized by the Supreme Court of the United States as authoritative in this state, as late as inScranton v. Wheeler, (179 U.S. 141). In each of the cases in the Appellate Division, the question of the substance of the right pertaining to riparian ownership was discussed with more or less elaborateness and the opinion in the Rumsey case was regarded as stating the law of the state upon the subject to be that the right of access comprehends the erection of a pier, or wharf. In City of Brooklyn v. Mackay, (supra), a case which concerned the right to construct a pier, it was said by the present chief judge of this court that "the foundation of the argument by the appellants is the assumption that a pier cannot be constructed without a grant from the state of the land under water upon which it rests. This probably was the law in this State under Gould v. H.R.R.R. Co. (supra); but, since the decision in the case of Rumsey v. N.Y. N.E.R.R. Co., (supra), it no longer obtains." In Jenks v. Miller, (supra), Judge CULLEN, again, referring to the fact that under the *Page 84 English law the right of access of a riparian owner did not include the right to erect a pier, or other structure in the water, without the consent of the crown, said: "In this country it has generally been held that the upland owner has the additional right of constructing a proper pier, or landing for the use of himself and the public, subject to the general regulations prescribed by the State or the United States, (Yates v. Milwaukee, 10 Wall. 497), and, since the decision in Rumsey v. N.Y. N.E.R.R. Co., (supra), that is the rule in this State." In People v. Mould, (supra), it was sought to remove a wharf in the Hudson river, which the defendant had constructed, upon the ground that though neither a nuisance, nor an obstruction to navigation, it was a purpresture. The opinion of Judge PUTNAM reviews this question most elaborately and reaches the conclusion that the defendant had but exercised his right of access to the navigable portion of the river and "had only done what was necessary to be done to obtain the benefit of his easement — what the authorities determine he had a legal right to do — without creating a nuisance," when he built his wharf in the shoal water near the shore, without obtaining a grant from the state.
The case of People v. Vanderbilt, (26 N.Y. 287 and 28 ib. 396), to which reference is made, is not in point; for there the structure erected by the defendant was a crib, with the superstructure of a pier, erected beyond the pier line of the city of New York, as established by law, and it was held to be a public nuisance. The case of Hedges v. West Shore R.R. Co., (150 N.Y. 150), was altogether different in its facts. The plaintiff in that case had claimed the right to interfere with the bed of the Hudson river, by digging a canal outside of the limits of his grant and thus changed the natural situation. That portion of the opinion, which is relied upon as limiting the riparian owner's easement, or right of access, must be read in connection with what the plaintiff was undertaking in the maintenance of an artificially deep channel in the bed of the stream from his business plant out into the river. The Rumsey and Saunders Cases, (supra), are *Page 85 cited in the opinion, (which was delivered by the same judge, who spoke for the court in those cases), as establishing the nature of the rights of a riparian owner. (p. 156.) The cases of Sage v. Mayor, etc., of N.Y., (154 N.Y. 61), and of Matter of Cityof New York, (168 ib. 134), did not contain the question now before us; but I find no difficulty in harmonizing what was said in each of the two cases, with respect to the rights of owners of land bounded upon a navigable river, with the rule as stated in the Rumsey and later cases, to which I have referred. It was said by Judge VANN in the Sage case and, in substance, repeated by Judge WERNER in the other case, that such owners were entitled "to certain valuable privileges or easements, including the right of access to the navigable part of the river in front, for the purpose of loading and unloading boats, drawing nets and the like," and the Rumsey and Saunders cases were cited. It would seem quite just and quite logical to read the language as intending that whatever might be held to be necessary to the practical enjoyment of the right of access for such purposes would, of course, be comprehended.
In Shively v. Bowlby, (152 U.S. 1), to which our attention is, especially, drawn, the question concerned the title to lands below high-water mark upon the Columbia river in the state of Oregon; which had been acquired by the plaintiffs in error, while Oregon was yet a territory, from the United States and upon which the defendants in error had built a wharf, under deeds to them from the state of the tide lands. The opinion reviews, at great length, the authorities and reaches the conclusion that the title, which, by the common law of England, was in the king to the soil of the sea, or of its arms, below high-water mark, had vested in the several states of the Union, subject to the rights surrendered by the Constitution to the United States. As by the common law, no one could erect a building, or wharf, upon the land below high-water mark, without a license, it followed, as the common-law rule of England upon the subject had become the law of the colonies and states of this country, except so far as *Page 86 modified by laws, or usages, and had been declared by the Supreme Court of Oregon to govern the rights in that state of upland proprietors, that the state, under the decision of its court, had the right to sell the lands under water free of any right in the proprietor of the upland. It was held that the law of Oregon, "as enacted by its legislature and declared by its highest court," governed the case. It was pointed out in the opinion that the law of Oregon had followed the law as it had been declared in New York in Gould v. Hudson R.R.R. Co., (supra), and it was, also, observed that the case had been overruled and a different doctrine declared in later cases in this court; citing Kane v.N.Y. Elev. R.R. Co. and Rumsey v. N.Y. N.E.R.R. Co. (supra). The Shively case declares the common-law rule upon this subject, as established in Great Britain by the decisions of the courts of that country, and with great clearness; but it is not, of course, obligatory upon this court to adopt such a rule in the decision of this case. The Federal Supreme Court, in its decision, explicitly, held itself bound by the law of Oregon, as it had been declared by statute and by decisions in the state court. It was, moreover, recognized that the question was one which was for each state to settle; or, as it was said, "each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy."
The interpretation, which, as I have shown, has been given by the courts of this state to the riparian owner's easement, or right of access, is justified in reason, is opposed to no statute and accords better with the circumstances, under which in this country such rights are possessed. This broader view finds some justification in the peculiar nature of our political institutions. In our democratic form of government, the residuary sovereignty not granted to the departments and offices of the government is in the people of the state. The residuary ownership of all property held by the state is in the people of the state and may not the accustomed exercise by property owners of some incidental rights with respect to it, as in the use of the soil of navigable arms of the sea, or rivers, *Page 87 for the support of piers and docks, become a common right and, as it has been suggested before, the common law of the state? I think so.
The right of access is conceded to be a valuable one and, unless the foreshore has been appropriated by the general government to some superior, and lawful, public use, as for example, by grant to a municipality, or for navigation purposes, it is entitled to the protection of the law. It has recognition in the statutory provisions which confer upon the owner of the upland the primary right to a grant of the land under water. It is not objected that these defendants have erected a nuisance, in itself, or in some obstruction to public navigation. If it were that, the exercise of the right would be unreasonable; for such ownership is qualified and is subordinate to the public rights of navigation, and must be subject to such rules as the legislature may impose for the protection of the public rights in the navigable waters. The courts of this state have been careful, in all cases, while sustaining the rights of the riparian owner, to declare them subordinate to the exercise of the power of the legislature, or of the Congress, for the improvement of navigation, or for the regulation of commerce. They must yield to the demands of public commercial necessities. This structure is conceded to be proper enough for the purpose intended by the defendants and it is no appropriation of the land under water; other than as the soil is used to hold the piles. The defendants have, simply, made their right of access practical. It is a general rule that when the use of a thing is granted, everything is granted by which the grantee may enjoy such use. By analogy, we may reason that the riparian owner's right of access to the navigable waters in front of his upland comprehends, necessarily and justly, whatever is needed for the complete and innocent enjoyment of that right.
So I conclude that the question is not what was the common-law doctrine concerning a riparian owner's right in the foreshore, or tideway; but what that right has been construed to mean by the courts of this state. The town of Brookhaven *Page 88 acquired its title under the royal grants; but it holds it in trust for the members of the community and, if we admit that the plaintiff, Post, as its lessee, took exclusive rights under its lease, they cannot avail to abrogate, or to destroy, a right, which appertained to a riparian ownership, to make available the easement, or right of access, by the construction of a landing pier, or wharf.
For these reasons, I advise that the judgment below be reversed and, as the controversy does not depend upon the facts, that the complaint be dismissed; with costs to the appellants in all the courts.