APPEAL by the plaintiff, The Town of Hempstead, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 29th day of December, 1910, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint upon the merits.
Charles F. Brown [Edward E. Sprague and Fred Ingraham with him on the brief], for the appellant.
William M. K. Olcott, George Boochever, Eph. A. Karelsen, J. Henry Work and James L. Gillingham, for the respondents.
The plaintiff brings this action to establish its title to a strip of beach land along the shore of the Atlantic ocean, and being the extreme southerly portion of the township. This property
is a strip of sandy outer beach about three and one-half miles in length, and about 1,760 feet wide at its easterly extremity, and of substantial width throughout its entire length. This parcel of land is separated from the mainland, known as Hicks beach, by a shallow channel, and is bounded on the south by the Atlantic ocean. Eastward of Hicks beach is a body of water forming a portion of Hempstead bay, known as Broad channel. The premises in dispute are within the lateral boundaries of the lands, meadows, marshes, waters and beaches which were granted to the freeholders and inhabitants of the town of Hempstead by royal patent, executed by Thomas Dongan, Lieutenant-Governor of New York, and dated April 17, 1685. Prior to the year 1870 a strip of sandy beach extended along the southerly line of the town of Hempstead, bounded southerly by the Atlantic ocean, from a point easterly of the premises described in the complaint to a point westerly thereof. In the month of April, 1870, a new inlet, then known as Deb's inlet and subsequently known as Hog island or East Rockaway inlet, broke through from Hempstead bay to the Atlantic ocean at a point to the east of the easterly line of the premises described in the complaint. This inlet, at first very shallow, soon reached a considerable depth and became navigable both in fact and in law, being used for ingress and egress from the cove which separated the beach from the mainland. This inlet, in effect a river in which the tide ebbed and flowed between the Atlantic ocean and the cove, did not remain fixed, but gradually moved to the westward at an average rate, as appears from the testimony, of about 400 feet each year. This inlet or river appears to have been practically one-half mile wide, with a channel ranging in depth from 3 to 7 feet at varying tides and about 500 feet wide, so that the inlet or river in its progress to the west cut a channel of several feet in depth across this outer beach and opened it to navigation. With this movement of the channel to the west there came a gradual accretion to the easterly shore, and the evidence indicates clearly that this accretion, following the westerly drifting of the channel, formed a considerable distance to the south or ocean side of the former location of the outer beach, though overlapping
the same to some extent, and the plaintiff claims that this accretion belongs to the town of Hempstead as the owner of the lands to which the changing sands of the inlet attached, even though the location covers some of the area originally covered by the defendant's land. The learned court at Special Term has dismissed the complaint upon the merits (70 Misc. 52), and the plaintiff appeals to this court. In the process of time there was a moment when the plaintiff owned the eastern bank of the inlet or river while the defendant or his predecessor in title owned the western bank of the inlet or river, and the evidence in this case shows that this inlet or river has gradually and with imperceptible movement proceeded to the westward, while a corresponding shore line has emerged to the eastward, the channel of half a mile in width, 500 feet of it being open to practical navigation for small craft, intervening at all times. Angell on Watercourses (§ 57) quotes Blackstone to the effect that if a river by degrees gains upon the land of a person on one side and thereby leaves the other dry, the owner who loses his ground thus imperceptibly has no remedy. The same author continues: 'A river ran between two lordships, and the soil of one side, together with the river, entirely belonged to one of the lordships; and the river, by very slow degrees, did encroach upon the soil of the opposite lordship; but so very deliberately, that it was impossible to perceive an immediate alteration; therefore, by this imperceptible increase, the land relicted became the property of the first lord. But if the river, by a sudden and unusual flood, had gained hastily a great parcel of the other lord's ground, he should still be entitled to the same.'
In the case at bar an inlet or river is formed upon the land of the town of Hempstead; it is a natural waterway in which the tide ebbs and flows, and by imperceptible erosions on the one side and accretions on the other, the land of the defendant to the westward is shifted and made to attach itself to the lands of the town of Hempstead on the east, and if the land of one lordship could be transferred to the other by this same process, we see no reason why the same result should not follow here. It is true, of course, in the case at bar that the evidence does not show an imperceptible change, in the sense that the change
could not be discovered at short intervals of time, but there is no evidence in the case which tends to show that any one could discover changes at the time they were being made, or that they could discover them at periods of a few days; the evidence is practically undisputed that intervals of weeks and months were necessary to show the changes, and that the movement has been at the rate of about 400 feet per year. In the leading case of King v. Lord Yarborough (3 B. & C. 91), which dealt with a tidewater case, two passages were cited from Hale's De Jure Maris in behalf of the crown, where the writer speaks of land gained by alluvion as belonging generally to the crown, unless the gain be so insensible that it cannot by any means, according to the words of one of the passages, or by any limits or marks, according to the words of the other passage, be found that the sea was there. This led to a discussion of the meaning of the word 'imperceptible,' and the court, speaking by ABBOTT, C. J:, say: 'In these passages, however, Sir Matthew Hale is speaking of the legal consequence of such an accretion, and does not explain what ought to be considered as accretion insensible or imperceptible in itself, but considers that as being insensible, of which it cannot be said with certainty that the sea ever was there. An accretion extremely minute, so minute as to be imperceptible even by known antecedent marks or limits at the end of four or five years, may become, by gradual increase, perceptible by such marks or limits at the end of a century, or even of forty or fifty years. For it is to be remembered that if the limit on one side be land, or something growing or placed thereon, as a tree, a house, or a bank, the limit on the other side will be the sea, which rises to a height varying almost at every tide, and of which the variations do not depend merely upon the ordinary course of nature at fixed and ascertained periods, but in part also, upon the strength and direction of the wind, which are different almost from day to day. And therefore, these passages from the work of Sir Matthew Hale are not properly applicable to this question. And considering the word 'imperceptible' in this issue, as connected with the words 'slow and gradual,' we think it must be understood as expressive only of the manner of the accretion, as the other words undoubtedly
are, and as meaning imperceptible in its progress, not imperceptible after a long lapse of time.' So Angell on Tide-Waters (1st ed. § 71) lays down the rule that 'The test of what is gradual as distinguished from what is sudden seems to be that, though witnesses are able to perceive from time to time that the land has encroached on the sea line, it is enough if it was done so that they could not perceive the progress at the time it was made.' (See Mulry v. Norton,100 N.Y. 432, and authorities there cited.) The original opening of this inlet or river was sudden; it occurred in a single storm on a given day. The change in the location of the inlet has never since that time been sudden in any such sense, in so far as the record goes. In a sense it might be said that a change of 400 feet in a shore line in a year would be sudden; it would be sudden in the case of a fixed shore line of the mainland, but it is hardly remarkable in the case of a mere sandhill thrown up by the changing tides of the ocean, and no witness pretends that he ever saw the change going on, or that he ever witnessed any considerable change due to a storm or other disturbance. Some of the witnesses testify that they have observed changes from month to month, but none of them claims to have observed changes at less periods, and the case is barren of any evidence that any one could see the change going on at any given moment, or that they were able to see any change ...