The prior decision (Tiffany v. Town of Oyster Bay, 209 N. Y. 1) held that the prior Andros patent took away from the State the power to grant to upland owners .on this harbor any rights in lands below high-water mark. But it did not settle what were the town’s rights and powers in the soil beneath Cold Spring Harbor. Such town title is subject to public rights of navigation and to the rights of 'access by riparian owners. (Town of Brookhaven v. Smith, 188 N. Y. 74, 78.) As patentee of the grant including this harbor, has the town the right to erect bathhouses upon this filled-in foreshore? Can it thus use the raised beach to the prejudice of the upland owner? The town’s rights were public in this estuary; such, for example, as ownership and regulation over oyster or other shell fish beds (Rogers v. Jones, 1 Wend. 237), with a general authority to preserve the harbor facilities, including the power (under the Federal government) to deepen, improve and protect them. But, except for some aid to commerce, fishing or navigation, I find no power to fill in the harbor, or to maintain parks or to establish recreation grounds upon lands reclaimed from lands under the waters of this harbor. Here the town proposes to erect an opus manufactum, such as a permanent building, on this outer shore fronting plaintiff’s uplands. Whether the extending shore surface be from gradual accretion, as alluvion, or by more violent means, there is no authority for such a building in front of a littoral owner, to cover and encroach upon made ground where formerly were public rights to navigate at high water, and at low water a right or servitude for a highway for public passage. It is not found that this fill has obstructed the public right of passage along this shore. In discussing public rights on the sea shore, an acknowledged authority has' declared: “ Quays, wharfs, and embankments in general, below high-water mark, convert that which was shore into terra firma, being, in fact, so much land gained from the sea, and therefore no longer shore. If any ground be left on the other side, towards the sea, that may be shore, and subject as before; but no one can suppose that an embankment by which the soil is rescued from the sea by the owner of the *130shore, would be abatable as a nuisance, in favor of bathing or fishing, whilst the shore, beyond and around, is still open to the public, and these rights may be enjoyed as easily as before. Nor was it ever contended that the supposed owner of the soil of the shore has not a right to convert it into term firma, at his own risk and expense, unless in so doing he created a public or local nuisance.” (Hall, on “ Eights of the Crown in the Sea Shores of the Realm” [2d ed. 1875], 179, 180.) Plaintiff’s action in May, 1913, in placing material along the foreshore was in no sense a trespass. He exercised a legal right, subject, possibly, on reversal of his judgment, to the obligation to make restitution. (Manning’s Case, 8 Coke, 94; Freem. Judg. [4th ed.] § 482.) Indeed, the old form of a decree of reversal directed “ that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid.” (Haebler v. Myers, 132 N. Y. 363, 366.) This duty plaintiff recognized in his prompt offer to restore the status quo.
But even if the solemn grant from the State as sovereign, and its confirmation by a divided court, be ignored, and plaintiff’s act in improving his front be tested by the final outcome of his litigation, it was not unlike the instance of a wharf owner extending his structure beyond harbor lines. The part going beyond the limits could be removed as a nuisance (People v. Vanderbilt, 38 Barb. 282; affd., 28 N. Y. 396), but not used for municipal purposes. In such circumstances lands in front of a riparian owner are not building sites save for structures in aid of navigation; and no supervening right over any part of such place can be exercised or maintained to the prejudice of the riparian owner. (Bowman v. Wathen, 2 McLean, 376; Matter of City of Buffalo, 206 N. Y. 319, 329; Morgan v. Livingston, 6 Mart. [La.] 228.) I cannot agree that if plaintiff still has a means of access over “ a considerable portion of his original shore line,” the town could take away such approach over his remaining frontage. Eiparian rights include accretions to the shore, so that the boundary may go outwards with the extension of the shore fine. (Mulry v. Norton, 100 N. Y. 424.)
The town itself cannot lawfully interfere with, much less obstruct by buildings, public rights of passage along such *131foreshore. At one stage of the tide such buildings are over lands that have been in the path of navigation of small vessels. At the ebb, such structures violate the jus publicum, and could be abated as a purpresture or a nuisance. So they are against public rights as well as in derogation of those of the littoral owner. (Johnson v. May, 189 App. Div. 196, 203.)
A public bathhouse incidentally raises another question. The public have no right to pass over the foreshore in England to bathe in the sea. (Brinckman v. Matley, L. R. [1904] 2 Ch. 313.) The public right to bathe, save at designated places, is doubtful in this country. (Hunt v. Graham, 15 Penn. Super. Ct. Rep. 42.)
As land held by towns under Colonial patent is proprietary, so that its disposition and control do not require legislative sanction (Town of Islip v. Estates of Havemeyer Point, 224 N. Y. 449), special scrutiny should be given to such rights over bays, harbors and waters, to see that, by novel assertion thereof, the rights of upland owners be not sacrified.
I advise that the judgment be reversed, and that defendants be restrained from erecting bathhouses, or other permanent structures, upon this filled-in land; with, however, a provision that the officials of Oyster Bay, notwithstanding their former refusal, may within thirty days elect to have this fill removed, and the shore restored at the plaintiff’s expense; that the finding of fact numbered 2 be modified by striking out the words “ in front of his entire upland; ” findings of fact numbered 8, 9, 10 and 13, and the conclusions of law numbered 3, 4, 5, 7 and 8 be severally reversed and rescinded. This reversal to be without costs of this appeal.
Mills, Rich and Kelly, JJ., concur; Jaycox, J., reads to affirm.