The plaintiffs appeal from so much of the interlocutory judgment entered on the report of the referee as adjudges that they are not entitled to an injunction against acts of the defendant preventing the passage of the public over that portion of its beach lying between high and low-water mark, and the defendant appeals from so much of said judgment as grants to the plaintiffs any relief, and appoints a referee to ascertain and report the damages sustained by the plaintiffs, or either of them.
The question here presented by plaintiffs’ appeal is that of the right of the general public to use the land between high and low-water mark, on the shores of lower New York bay, as a highway, and is not at all analogous to the rights of the owners of the upland to use such portion of the beach for the purpose of gaining access to the waters opposite their land or to such portion of said waters as is navigable, by means of a pier or dock, which is the subject of decision in many of the cases to which our attention is directed. The common law of England upon this subject was clearly defined as late as 1904 in Brinckman v. Matley (L. R., 2 Ch. Div. 313 [1904] ; affd. on appeal, id. p. 321), as follows: “ By the common law all the King’s subjects have in general a right of passage over the sea with vessels for the purposes of navigation and have, prima facie, a common of fishery there, and they have the same rights over that portion of the sea which lies over the foreshore at the times when the foreshore is covered with water. But when the sea recedes and the foreshore becomes dry there is not, as I understand the law, any general common-law right in the public to pass over the foreshore.” The legal right of the owner of the upland to exclude the public from the use of the dry land lying between high and low-water mark has been maintained by our courts in Nolan v. Rockaway Park Imp. Co. (76 Hun, 458); Town of Brookhaven v. *438Smith (188 N. Y. 74); Rumsey v. N. Y. & N. E. R. R. Co. (133 id. 79); Matter of City of New York (168 id. 134); Wetmore v. Atlantic White Lead Co. (37 Barb. 70); Whittaker v. Burhans (62 id. 237); Ledyard v. Ten Eyck (36 id. 102); Sisson v. Cummings (35 Hun, 22). Although the last cited case was reversed (106 N. Y. 56), it was upon a preliminary question, and the principle therein decided as applicable to the case at bar was not disturbed.
It is said in Barnham on Waters (p. 656): “ The shore of the sea below high water mark, whether the title is in the public or in the riparian owner, is not a highway for public travel upon foot or with vehicles.”
The defendant is a riparian owner, in which the title to the land occupied by its pier in front of its upland and under water, is vested by letters patent from the People of the State of Hew York. But it is contended that because of the condition contained in said letters patent— that it should not obstruct the passage of the public in crossing or recrossing the land between high and low-water mark — this action to preserve to the general public the right to use the land lying between high and low-water mark as a highway for travel along the shores of the bay is maintainable. While this view may seem to be warranted by the broad language of the grant, wre do not think that it was intended to reserve to the public a right it did not possess and was not, as against the defendant, entitled to. If the construction contended for should prevail, the State, as trustee for the public, would have the right, without compensation to the riparian owners, to construct a highway upon and over the laud upon the beach lying between high and low-water mark, which the Court of Appeals in Matter of City of New York (supra) expressly held could not be done.
It is unnecessary, however, to give further consideration to this question as the action is not brought by the People to preserve and enforce their rights in the beach, but by adjoining riparian owners to prevent the defendant from obstructing the access of persons from the defendant’s place of amusement to that of the plaintiffs, and for damages. It is well settled that such an action may be maintained by the State alone. (Knickerbocker Ice Co. v. Shultz, 116 N. Y. 382, 388; Archibald v. N. Y. C. & H. R. R. R. Co., *439157 id. 574; White v. Nassau Trust Co., 168 id. 149; Saunders v. N. Y. C. & H. R. R. R. Co., 144 id. 75; New York Central & H. R. R. R. Co. v. Aldridge, 135 id. 83; City of Brooklyn v. Mackay, 13 App. Div. 105.) It is not shown that the defendant’s pier in any manner interferes with navigation or with the use by the public, for any authorized purpose, of the waters of the bay so that it is not a nuisance. (Delaware & Hudson Canal Co. v. Lawrence, 2 Hun, 163; affd., 56 N. Y. 612; Jenks v. Miller, 14 App. Div. 480; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; People ex rel. Howell v. Jessup, 160 id. 249 ; Kerr v. West Shore R. R. Co., 127 id. 269.)
The defendant’s contention upon its appeal is without merit. The learned referee has found upon sufficient evidence that it has constructed some of its buildings in a public highway, preventing its use by the public at the places of such encroachment, as the result of which plaintiffs have sustained special damages in the loss of patronage at their summer resort, together with the discharge of sewage upon plaintiffs’ premises, which entitle them to the relief granted by the interlocutory judgment.
The exceptions present no reversible error, and the interlocutory judgment must be affirmed, without costs to either party.
Woodward, Jerks and Gaynor, JJ., concurred; Hooker, J., concurred in result.
Interlocutory judgment affirmed, without costs.