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June 25, 1981

Frank W. KOHLASCH, as Executor of the Last Will and Testament of Frank H. Kohlasch, Deceased, and Echo Bay Boat Yard, Inc., Plaintiffs,
NEW YORK STATE THRUWAY AUTHORITY, Defendant and Third-Party Plaintiff, v. CITY OF NEW ROCHELLE, Third-Party Defendant

The opinion of the court was delivered by: WEINFELD


The path that this lengthy, tortuous litigation has followed commenced in 1976 and has resulted in a series of complaints, amended complaints, and third-party complaints in this Court and others. This Court has previously dismissed all but admiralty claims against both defendants, and as a result plaintiffs have been left in three courts with an assortment of claims. *fn1" The admiralty claims tried in this action are in a very real sense the narrowest of all.

 Plaintiffs Frank W. Kohlasch (as executor of the estate of his father, Frank H. Kohlasch) and Echo Bay Boat Yard, Inc. (collectively referred to as "Kohlasch") are the owner and lessee respectively of real property abutting on navigable waters in the City of New Rochelle. There they have been engaged in the business of operating a boatyard for the storage, maintenance, and repair of boats, and a marina. They seek damages against both the New York State Thruway Authority ("Authority") and the City of New Rochelle ("City") allegedly sustained as the result of the discharge across their property of effluent consisting of oil, sand, debris, chemicals, and other substances from a drain on adjacent lands. They also seek permanent injunctive relief against the continuance of such conduct.

 Originally, plaintiffs asserted five different claims for relief against each defendant (the City was made a party-defendant in this action a year after the Authority had filed a third-party complaint against the City). These included allegations of taking property without just compensation, obstruction of a navigable channel in violation of plaintiffs' navigational rights, erosion of a bulkhead on plaintiffs' land, pollution of surrounding waters, and malicious and intentional failure by the Authority to obtain required permits for the construction and maintenance of sewers and drains that discharge into navigable waters. In two separate opinions, familiarity with which is assumed, *fn2" this Court dismissed all but the claims based on the admiralty jurisdiction of the Court that is, those alleging shoaling of the channel impairing navigational rights and pollution of the waters.

 The Kohlasch property, which has been used as a boatyard and marina since 1947, is located at the westerly end of a channel in New Rochelle leading from Echo Bay, which is itself a part of Long Island Sound. Immediately upland from Kohlasch's property is Sentinel Oil Company, a portion of whose property abuts on the end of the channel; the property adjacent on the seaward side of the Kohlasch property is owned by the Nelstad Sand and Gravel Company (formerly Frost), which maintains docks where barges unload sand and gravel.

 Frank H. Kohlasch bought his property at a tax sale from the City on June 27, 1946; Echo Bay Boat Yard, Inc. has been the lessee of the property since 1947. *fn3" The deed of sale given to Kohlasch by the City included in part certain land beyond the mean high water mark. Kohlasch thus maintains that he owns good title to that portion of the property, although both defendants contend, and devoted much of their efforts at trial to establish, that that property, being beyond mean high water, is owned by the State of New York and that the City conveyed to Kohlasch only any right, title, and interest it may have had.

 In 1954, when the New Rochelle section of the thruway was built, the Authority constructed a drain or conduit through part of the City and connected it with portions of the City drain system. Since then drainage has been carried from the roadway and lands of the Authority and City streets. The drain extends through the City and terminates on the land of Sentinel Oil Company, from whom the Authority purchased a permanent easement. The opening of the drain on the Sentinel property from which material is discharged is located approximately 75' from the property line between Sentinel and Kohlasch, is 3' high and 9' wide, and is a reinforced concrete box. The drain discharges over a concrete apron and then into a gully on Sentinel property.

 This outfall, after it leaves the apron of the drain, flows beyond the Sentinel property line into the area beyond mean high water to which Kohlasch asserts title by virtue of the deed obtained at the tax sale in 1946. There is no dispute that the outfall travels across the lands described in that deed, nor is there an issue that no easement was ever purchased from Kohlasch for the path of the outfall over these lands.

 The area of the Kohlasch boatyard immediately adjacent to the Sentinel property (and hence closest to the drain) currently consists of a submerged and filled-in barge which constitutes a bulkhead in the area beyond the mean high water mark. When the drain was originally built in 1954, Kohlasch had two floating barges in that area; since then, however, the outer barge has been removed and the inner one filled in to become part of the land.

 Immediately beyond this bulkhead, and about 200' from the drain opening, there was at one time a marine railway used to haul boats in and out of the water. Beginning in 1977, Kohlasch removed the railway tracks and leveled the land around them because a buildup of muddy material over the tracks made it impossible to continue to use the tracks to haul. A crane is now used in place of the tracks to haul boats.

 Beyond this area is the remainder of the Kohlasch property. The area beyond mean high water is used as a marina, although for nine or ten years up until it was dredged in 1978, it could not be so used.

 The substance of the plaintiffs' complaint is that the defendants have collected drainage from the roadway and land of the Authority and the streets and lands of the City and directed such drainage over and across plaintiffs' property so as to deprive them of access to part of their property and in such a way as to shoal and make unnavigable the channel across part of their property. Defendants, on the other hand, contend that shoaling of the area adjacent to plaintiffs' boatyard and shoaling of the channel are caused by natural forces of tide and wind.

 Although water does not always come out of the drain with great force, after a storm it does; indeed, Robert Kohlasch testified that it was sometimes "like Niagara Falls." Examination of the land immediately beyond the drain apron clearly supports this characterization. *fn4" A deep gully, between ten and fifteen feet deep, has been formed by the drainage. According to plaintiffs' expert, John Connors, most of this erosion occurred soon after the drain was installed. As water flows rapidly out of the uncovered drain into this gully, the heavier material settles out of the water first and the lighter material is carried along until the water slows down enough for it to settle to the bottom. By this process, material fills in the bottom of the channel.

 Both Robert and Frank W. Kohlasch, the sons of the original owner, who were in business with and worked with their father, testified that they observed the construction of the drain in 1954 though they did not pay much attention to it at the time. However, after the drain was in place, they began having problems with the depth of the water in the boatyard. As noted above, mud and "soupy" material covered the marine railway. For a time they themselves tried to dig the railway out, but that became too big a chore. Thus, while they originally could haul three or four boats per high tide, after the railway filled in they could not always do so and sometimes had to moor boats in the channel and wait for moon tides, which are particularly high. Over the years since 1959, when part of the property was dredged, the basin around the marina filled in to such a degree that much of it was dry at low tide. This in turn reduced the capacity of the boatyard ...

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