(76 Hun, 458.)

#### NOLAN v. ROCKAWAY PARK IMP. CO., Limited.

(Supreme Court, General Term, First Department.

March 16, 1894.)

Riparian Rights — Right to Land between High and Low Water Marks.

The owner oí land bounded by tide water, to whom the state had granted the adjoining land below high-water mark and extending some distance into the water, is entitled to the exclusive possession of the land below high-water mark, and may exclude persons from entering thereon.

Appeal from circuit court, New York county.

Action by Thomas Nolan against the Rockaway Park Improvement Company, Limited, to recover damages for assault and battery committed by employes of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

William J. Kelly, for appellant.

Stephen C. Baldwin, for respondent.

FOLLETT, J.

This action was brought to recover damages for an assault and battery committed by two employes of the defendant. The answer is “molliter manus imposuit,”—that defendant was the owner of a beach whereon the plaintiff was trespassing, and that its employes used no more force than was necessary to prevent him from continuing his trespass. Since August 5, 1889, the defendant has been the owner in fee and in possession of 21 acres of upland at Rockaway Beach, in the town of Hempstead, which is 4,331 feet wide east and west, and is bounded on the south by the Atlantic ocean. April 26, 1890, the state of New York, by its letters patent, granted to the defendant about 100 acres of land, bounded on the north by the south line of the piece of land first mentioned, and extending south below- low-water mark, and into the Atlantic ocean. It appears by undisputed evidence that the defendant used the upland as a place of recreation, and the beach as a bathing place for its guests. On the 25th of July, 1891, the plaintiff entered upon the beach, and was walking between high-water and low-water mark, when he was ordered away by *103the defendant’s employes, and, on refusing to go, he was ejected by them. The court, in submitting the question of the plaintiff’s right to enter on the beach, charged that “in his [plaintiff’s] emry upon the beach between high and low water mark [he] was merely enjoying, and proposing to pursue, his strict legal right. He had a right of passage along the beach between high and low water mark, and neither this defendant nor the defendant’s servants had any legal right to interrupt, obstruct, or turn him therefrom.” To this instruction the defendant excepted, and asked the court to charge the converse, which request was refused, and an exception talien. In giving this instruction, and in refusing the one asked by the defendant, the court erred. At common law the owner of land bordering on the ocean has a legal right to possess and occupy the land between high and low water mark, subject, however, to the right of the state and of the United States to take the land for its own use, or to authorize it to be taken by a corporation for public use, and also subject to the right of the public to use it in aid of navigation. The adjoining owner may occupy to low-water mark for the purpose of gathering seaweed or building wharves, or for any private purpose not inconsistent with the rights of the public. People v. Tibbetts, 19 N. Y. 523; East Haven v. Hemingway, 7 Conn. 186-203; Blundell v. Catterall, 5 Barn. & Aid. 268. This legal right of the adjoining owner is a sufficient title to enable him to maintain ejectment against an intruder upon lands between high and low water mark, when the lands above and below are embraced in the same action, and are recovered in the same judgment. Nichols v. Lewis, 15 Conn. 137; Jackson v. Buel, 9 Johns. 298; Jackson v. May, 16 Johns. 184; People v. Mauran, 5 Denio, 389; Brown v. Galley, Lalor Supp. 308. In addition to the common-law right of the defendant in this beach, it had an absolute grant from the state of the land below- high-water mark, and extending some distance into the ocean, subject only to the following limitation:

“Excepting and reserving to all and every the said people the full and free right, liberty, and privilege of entering upon and using all and every part of the ahove-described premises in as ample a manner as they might have done had this power and authority not been given, until the same shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereon, or for the beneficial enjoyment of the same by the adjacent owner.”

It appears that the defendant had erected a pier and dock on the land granted to it by the state, and used the beach as a bathing place in connection writh its upland, thus applying the land granted by the state to the “beneficial enjoyment of the adjacent owner;” and the position that grantees who are in possession of and using the subject of the grant have not the right to exclude persons entering thereon for their own pleasure, or to gratify their curiosity, cannot be maintained. Such a rule would be destructive of many valuable rights acquired in the navigable waters adjacent to the maritime cities of this state. It is sought to maintain this judgment on the theory that the plaintiff entered on the beach *104for the purpose of serving a summons and complaint on one of the defendant's employes. It is a sufficient answer to this position that the plaintiff's right to enter on the premises was not placed on that ground by the court; and, besides, the plaintiff, at the time of entering, did not assert his right to enter for that purpose, but insisted that, as one of the public, he had the absolute legal right to enter at his own will and pleasure; and further, though the plaintiff had abundant opportunity to serve a summons and complaint, he made no attempt to do so. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.