(dissenting):
The defendant is the owner of certain lots of the Lake George Camp Association grounds, upon which he has a summer residence. His lots do not touch the lake, but are about two blocks distant. He built a boathouse upon a dock, which he constructed for that purpose in the lake, at low-water mark. It is conceded that Lake George is navigable water and not private property, and we assume from the concession, and the manner in which the case was tried, that the title to the lands below low-water mark is in the people of the State. The plaintiffs’ title runs to low-water mark only.
The greater part of the boathouse is at the end of White avenue, but a small part of it extends over in front of block 13. The court has found that White avenue extends between blocks 10 and 13 to the lake, and that the plaintiffs are the owners of said blocks, and all the lands formerly belonging to the camp ground association which had not been sold to lot owners, and of the streets themselves, subject to the right of lot owners to use them as streets.
The lots were sold according to a map upon which various streets and avenues appear, and the conveyances were made describing the lots by lo.t. and block numbers “ with a right of way to and from said lot upon and over the streets or highways laid out upon said grounds the title of which said streets or highways is reserved to the party of the first part.”
The findings of fact by the court and the conclusion that the action may be maintained against the defendant for a recovery of the land which is occupied by the boathouse and dock immediately in front of block 13, are satisfactory; but it is in error in the conclusion that the plaintiffs have no right of action with reference to that part of the defendant’s boathouse sitriated at the end of White avenue. Defendant has no right to appropriate the water front at the end of this street to the exclusion of the plaintiffs and of all persons who purchased lots from the association. The association, by plotting these lands and selling them with reference to the map, *720retained the title to the streets themselves and only gave the purchasers a free right of way over and through the streets. The defendant and all other lot owners have the right to enter the lake from this street, but the defendant 'may not build a boathouse there and thereby assume the exclusive occupation, of the street or a material part thereof.
The'rights of the owner of lands adjoining navigable waters have’ been so fully defined by recent decisions- that it is unnecessary to discuss them. (Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378; Town of Brookhaven v. Smith, 188 id. 74.)
These cases seem- to indicate that the owner of the uplands, has a common-law right of access to navigable waters from the front of his land, including ■ the construction.- and maintenance of a pier .on the land under water beyond higlnwater mark for. his own use, or the public use, subject to such general rules and regulations as Congress'or the State may prescribe for the protection of the rights of the public. The Barnes case holds-that .the public-have the right to pass and repass between high and low-water-mark for the purposes of .fishing, bathing, boating or other proper purpose, and that while the owner of the upland- had the- right tq erect a pier, he may not unnecessarily interfere- with the right of passage over the beach by the public, and that a person suffering-special injury thereby is entitled to equitable relief, and that-if. the owner of the upland erect unnecessary useless structures interfering with such. right of passage/ a person -injured thereby could have injunctive relief.
It is urged that such right is at most an incorporeal hereditament, and'that ejectment: does not lie for the recovery thereof,, but that the remedy, if any, is an action in ■ equity. (Moore v. Brown, 139 N. Y. 127.)
The recent cases, carried to their legitimate conclusions, establish that the plaintiffs have a common-law right to have the shore upon the navigable waters in front of their premises unobstructed by structures unlawfully built thereon, and that the illegal erection of a structure thereon is an invasion of their legal rights for which they may have a proper remedy.
It is not necessary to nam'e this action as an action of ejectment or'otherw-ise ;< the object of the action is to prevent the illegal interference by: the defendant with the plaintiffs’ common-law rights. *721The sheriff may restore to the plaintiffs the use of the property by a removal of the illegal structures." (Butler v. Frontier Telephone Co., 186 N. Y. 486.)
While the complaint does not'state all the facts upon which the plaintiffs’ right to relief rests, the answer states further facts and demands equitable relief, and the complaint, the answer and the reply fairly bring before the court the facts which are necessary to consider in determining whether the plaintiffs may have relief in this action.
lío objection was made that evidence offered was outside of the pleadings, but the rights of the parties in every aspect of the case appear to have been freely litigated. The question tried was the right of the defendant to maintain the boathouse at the place w;here it is located. Under the pleadings the court was required to determine whether the plaintiffs’ alleged conveyances were unlawful clouds upon the defendant’s title, and if so, to remove them; whether the attempted conveyances of the streets and the strip of land along the shore were fraudulent and void, and if so, to set them aside; to adjudge and determine whether the streets and the strip of land along the shore had been dedicated to the public use, and the court was required to grant “ such other or further relief in the premises as may seem proper.” The object of the trial was to do justice between the parties upon the facts alleged and the facts proved, the issue actually tried ; and it would be a denial of justice to hold after this trial that while the plaintiffs were entitled to a judgment restraining the defendant from maintaining a boathouse in front of their premises, they must fail, in the action and be driven to another action because their complaint, technically construed, is for ejectment and not for equitable relief. The name is immaterial; the judgment should rest upon the facts actually litigated and foreshadowed by the entire pleadings, the complaint, the answer and reply. This is not a case of surprise, but it is a technical objection urged to do an actual injustice between the parties after a full and fair trial has been had. It is true that in his requests to find the defendant asks a finding as a conclusion of law that an incorporeal hereditament is not the subject of an action of ejectment; but the answer, the reply and the course of trial had *722removed this case outside of the technical definition of-an action of ejectment. '
The judgment for possession may be subject to the criticism that the plaintiffs acquired thereunder the boathouse itself. It should, therefore, be modified by directing that tile judgment be executed by removing the boathouse from said premises unless the defendant, within ten days from the entry of the judgment, shall cause the same to be removed. -
The court having. found all the facts, but having drawn an erroneous conclusion of law with respect to some of them, it is competent for this Court to give such judgment as a proper application of the rules of law to the facts found justifies. (Du Clos v. Kelley, 197 N. Y. 76.)
The court- did not err in directing the amendment to the complaint. It is true that the complaint described the land occupied by the defendant as the thirty feet at the end of White avenue. It also described it as being a part of the Garrison ground tract, so called, upon which the defendant has constructed and maintains a boathouse and dtick. The evidence and recovery’ relate solely to the ground upon which the boathouse and dock were constructed. The-judgment is fairly justified by the pleadings.
The judgment, therefore, should be modified as above, and by including all the premises occupied by the boathouse and dock, instead of only that part thereof opposite block 13, and as so amended should be affirmed, with costs to the plaintiffs.
Smith, P. J., concurred.
Judgment reversed and new trial granted, with costs to appellant defendant to abide event.