New-York tribune., 1918-07-31
Court Orders All
Beaches at Coney
Be Free to Public
Fences Must Be Removed
From Bathing Grounds,
Says Justice Benedict
Hits Private Plants
Rules Only Charge Permissi-
BILE Is for Bathhouse and
Suit Privileges

00At AA*AACHCo
Justice Benedict in the Brooklyn Su
preme Court yesterday ruled that the
beach at Coney Island belonged to the
public, should be free to the public and
that the beach fences must go.
Amusement concerns Sill may col
lcct their toll for bathing suits, towels,
use of bathhouses, etc, but Justice
Benedict holds that hereafter Mr.. Com
mon Peepul and family must be free to
stroll the length of the beach, squat on
the sand where they will or otherwise
disport hemsclves-all unhampered by
any picket or pile symbols of private
ownership.
Calls 1t Abhorrent
Private control of beaches on which
is abhorrent to the sense of common
justice. declared Justice Benedict.
The decision was in the case of
Giovanni Aquino, proprietor of the
property at the foot of West Thirty
seventh Street, Coney Island, who
sought to restrain Borough President
Riegelmann and Highways Commits
sioner Henry Hesterberg from inter
fering with the driving of piles to fence
off the Aquino holdings.
In his decision Justice Benedict said
in part:
'In making this disposition of the
motion | am aware that my act may be
construed as recalcitrant upon the
ground that in this case do not follow
the decision of the Court of Appeals in
the case of People agt Steeplechase
Park, IN which that learned tribunal by
a vote of four to three judges modified
the decision of the Appellate Division
IN this department and held that the
owner of the upland might acquire
from the Commissioners Of the Land
Oftice, one of the administrat tive boards
OF the state government, for beneficial
enjoyment and not for the promotion
OF commerce, a grant to the foreshore
in front of his property which would
be superior to the rights Of the people
of the state and would enable him to
exclude all persons from the foreshore.
Denies State Power
For reasons stated by the Court of
Appeals in deciding other cases. must
respectfully refuse to follow it in the
modification or limitation of the gem
eral rule which it adopted in the
Steeplechase Park case.
u deny that the Legislature has
the power either by direct action or
otherwise to give or grant to anv
person rights which are the property
of all the citizens of this common
wealth, and which the Legislature
holds In trust for the common use
and does not hold in its own right or
any board OR commission to sell and
grant to any person, natural or art-
ticlal, such rights and properties as are
held in trust for the common benefit
of all the citizens of the state, and
assert that such rights are inaliena-
BILE | deny the right of any person
to build or maintain such erections,
whether by virtue of grant from
the state authorities or otherwise as
VII prevent the reasonably free and
unobstructed enjoyment by all the cit
lzens OF MS state OF right OF passage
across lands over which the tides ebb
and flow, and | assert now as | as
serted before in the Steeplechase Park
case, that grant of lands Under
water and between high and low
water marks :. to an individual, which
SoHtalllo no HdDeHuuH Clause, or words
to indicate any intention to sur
render or extingush the public right
OF passage, does not operate to de-
prve the public Of such right and will
be construed as subject thereto upon
the principle that such grants are
to be construed strictly against the
grantee.
"ln the case of these grants of land
lying between high and low water in
this state, the upland owners do not
give to the state (even if the state
could legally grant it a value at all
commensurate with the property grant
ed. The cons sideration is usually SO en-
tirely inadequate to the benefit con-
ferred as to make the transaction il
not fraudulent in fact at least fraudu-
lent in the eye Of the law. Especially
is true in the case of bathing beaches
in close proximity to great centres of
population, where the purpose of the
grant, as Judge Bartlett said in re-
gard to the Huber grant in the Steeple-
chase Park case, appears to have been
70 promote not commerce, but recrea-
ton for private gain
upon what moral or ethical consd-
GRAFTON can the state justify per-
petual grant of land forming the fore
shore at Coney Island for mere
trifling consideration of less than 500
an acre when it knows, or ought to
know, that such a grant, by means of
excluding fences, can be made to re-
turn thousand percentum upon its
cost each year?
"Such & situation is abhorrcnt to the
Sc