United States District Court, E.D. New York
March 17, 2004.
JOSEPH ROMEO, Plaintiff
MARK SHERRY, NEW YORK SUBMARINE CONTRACTING COMPANY, INC., ROBERT C. HANKEN, JOHN GARNER, JOHN GARNER MARINE CONSTRUCTION and TOTTENVILLE MARINA, INC., Defendants; MARK SHERRY and NEW YORK SUBMARINE CONTRACTING COMPANY, INC., Third-Party Plaintiffs v. JOSEPH TOTH, JOSEPH TOTH d/b/a RIMROCK TRUCKING, RIMROCK TRUCKING, INC., GLADSKY MARINE SHIP REPAIR & CONVERSION, INC., SIMPSON & BROWN, INC., WARREN DISCH, WARREN DISCH d/b/a WARREN DISCH CONSTRUCTION, DISCH CONSTRUCTION CORP., JOHN SNEED, SHELIA LEE SCHWARTZ and BEGNA ASSOCIATES, LTD., Third-Party Defendants
The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge Page 2
MEMORANDUM AND ORDER
Joseph Romeo ("Plaintiff) brings this action for trespass, nuisance,
and interference with riparian rights, claiming that vessels and objects
placed in the waterway interfered with his property in Staten Island. A
bench trial was held before me in Brooklyn, New York from June 17 to July
29, 2003. For the reasons set out below, Plaintiffs claims are denied,
and judgment shall be entered for the defendants.
I. PROCEDURAL HISTORY
Plaintiff is a professional wedding photographer with experience in
construction and real estate investment. First Trial Transcript 215,
246-250 (hereinafter "Tr."). Plaintiff originally filed this case in the
Supreme Court of the State of New York, Richmond County, and Warren
Disch, then a Third-Party Defendant, removed the matter to this court on
November 5, 1999 on the basis of admiralty jurisdiction.*fn1
28 U.S.C. § 1333. This litigation involves properties located on 169, 171, and
175 Ellis Street in Tottenville, along the Arthur Kill, a waterway that
divides Staten Island, New York from New Jersey.
Following the filing of Plaintiff's Second Amended Complaint on April
3, 2000, Defendants moved on August 11, 2000 to dismiss the instant
action under Fed R. Civ. P. 12(c). In that motion, Defendants argued
that: (1) Plaintiff lacked standing; (2) the claims were
preempted by federal law; (3) economic damages could not be the
sole basis for recovery; and (4) Plaintiff's damages were too
In a Memorandum and Order dated January 23, 2001, the court denied
Defendants' motion to dismiss. The court found that Plaintiff had
standing to bring his claims. Memorandum and Order (hereinafter
"M&O") 11. The court found that it had jurisdiction over Plaintiff's
admiralty claims under 28 U.S.C. § 1333 and exercised supplemental
jurisdiction over the state law claims under 28 U.S.C. § 1367.
M&O at 3. The court examined whether the River and Harbors
Appropriation Act of 1899, 33 U.S.C. § 401 et seq.,
preempted Plaintiffs maritime tort and state common law claims and found
that it did not. Id. at 5-8. The court did find that under
Robins Dry Dock & Repair v. Flint, 275 U.S. 303 (1927),
Plaintiff could not recover purely economic damages caused by a maritime
tort unless Plaintiff could show (1) a proprietary interest in State
Lands, (2) a violation of his riparian rights, or (3) an infringement of
the use and enjoyment of his property beyond his riparian rights. M&O
at 8-10. The court found that if the alleged facts were proved, Plaintiff
could satisfy one of the prongs of this test. Finally, the court held
that Plaintiff's damages were not speculative. M&O at 11.
II. FACTUAL BACKGROUND*fn2
A. General Background
In August, 1994, Plaintiff purchased waterfront property at 169, 171,
and 175 Ellis Street from the estate of Elizabeth Snee, which was being
administered by her son, Defendant John
Snee ("Snee") Stip. Fact No. 1. When Plaintiff bought the
property, numerous barges lay offshore in plain sight. Plaintiffs Exhibit
(hereinafter "PL Ex.") 52; Tr. 158-159, 185-186. At Plaintiff's request,
Defendants Mark Sherry (hereinafter "Sherry") and John Garner
(hereinafter "Garner") thereafter removed all barges that they conceded
were theirs, leaving the five vessels which are the subject of this suit.
State-owned underwater land extends from Plaintiff's property line into
the Arthur Kill. In dispute is whether this property line corresponds to
the high-water mark or the low-water mark. Subsequent to his purchase,
Plaintiff subdivided this property into three separate lots. Stip. Fact
No. 5. This subdivision left 175 Ellis Street as the sole lot owned by
Plaintiff adjacent to the Arthur Kill. The other lots are not adjacent to
the Arthur Kill. Pl. Ex. 2. Plaintiff sold 175 Ellis Street to Otto Zizak
in 2002. Tr. 10124013. Plaintiff sold the other plots in 1998 and 2003.
Garner Defendants' and Toth Third-Party Defendants' Proposed Findings of
Fact and Conclusions of Law (hereinafter "Def. 8/20/03 Br.") 11.
Consequently, Plaintiff is no longer the owner of the properties that are
the subject of this case.
B. The Obstructions
At the time of Plaintiffs purchase, fourteen steel and wooden barges
lay offshore from his property. PL Ex. 52. Defendant Garner removed six
of these barges at the Plaintiffs request. Tr. 193. Three others were
removed by Defendant Sherry. Tr. 110-111, 192-193. Five barges remained
at the time of the trial of this case. Two are steel barges, referred to
as the "S&B 4" and the "Purple Barge," while the other three are
unnamed wooden barges. Tr. 158-159, 161-163. All five barges came to
their current location prior to the acquisition of the property by
Plaintiff, and remained in situ for the entire duration
of Plaintiff's ownership. Tr. 181-182.
Defendant Garner made an offer to Plaintiff to remove the two steel
obstructions at no charge so long as Plaintiff first obtained permits to
remove third-party property.*fn3 Tr. 748-749, 778-779. Garner testified
that since he did not own the barges, and did not know who did, that he
believed he would need such a permit before undertaking their removal.
Tr. 778, Plaintiff, thinking that the offer was not genuine, declined.
Tr. 116, 181-182. Zizak, the current owner of 175 Ellis Street, received
the same offer from Garner once he purchased the property. Tr. 851-852.
Zizak has obtained permits from the Army Corps of Engineers (hereinafter
"ACOE") to remove the barges, prompting Defendant Garner to agree to
remove the S&B4 and the Purple barge.*fn4 Tr.781.
i. The S&B4:
The S&B4, ("Vessel A"), is a steel barge located approximately 75
feet offshore from the high water mark of Plaintiff's property, on the
foreshore.*fn5 Tr. 169. Third-Party Defendant Simpson & Brown, Inc.
("Simpson") acquired the vessel from a previous owner. Tr, 266. The
evidence at trial indicates that Defendant Robert Hanken (hereinafter
"Hanken") subsequently acquired the S&B4 in 1981 at no charge, and
kept it moored on the foreshore of the Snee
property (which later became the Romeo property). Tr. 400-401,
522-523, 538. This was done with the knowledge of the Snees, who did not
object. Tr. 481-482. The testimony shows that, either by trade to
Defendant Joseph Toth or by conveyance to Hanken through the efforts of
Toth, Simpson parted with its ownership interest in the S&B4.
Two years after his acquisition of the S&B4, Hanken sold his
property at 179 Ellis Street and his ownership interest in New York
Submarine Co., Inc. to Defendant Sherry. Tr. 400-401; PL Ex. 27. The
S&B4 was not listed as an item on the bill of sale. PI. Ex. 27.
Sherry testified that Hanken later offered, for free, to give Sherry
items on the barge as well as the barge itself. Tr. 402-403. Sherry
agreed to take a few antique anchors and a winch from the S&B4, but
not the barge itself. Tr. 473-474.*fn6
The S&B4 was moored on the foreshore of Snee's property, where it
was tied to various John Garner Marine Company ("JGMC") vessels. Tr.
59-760. In the early 1980s, Garner untied one of his barges from the
S&B4, causing it to drift free. Tr. 404, 759-761, 815-816. This
prompted him to move the S&B4 approximately 50 feet to prevent it
from becoming, in Garner's opinion, a danger to navigation. Id.
The S&B4 has not moved since, at least until the time of the trial in
this case. Tr. 470-474, 760.
ii. The Purple Barge:
The Purple barge is a steel oil barge. Tr. 738. The vessel was moved by
non-parties from the Chelsea Piers area and arrived in the Tottenville
area on or around July 3, 1986. Tr. 708, 800-803. All parties agree that
the barge has not moved since that time. Tr. 706-710, 812-813.
Plaintiff testified that he believes that the Purple Barge is owned
by Third-Party Defendant Sheila Lee Schwartz (hereinafter "Schwartz"),
against whom he has made no claims. Tr. 162.
Plaintiff does, however, claim that "it is unlikely that Garner would
have permitted a vessel as large as the Purple Barge to occupy so much of
the basin area unless it was on his direction or instruction." Def.
8/20/03 Br. at 19. Garner, however, testified that he did not direct the
placement of the barge, and that he did not know (until later) who was
responsible for bringing the barge to its current location. Tr. 801-803.
iii. The Offshore Wooden Vessel:
The unnamed offshore barge ("vessel C") is a wooden vessel that has
been abandoned in its current location on the foreshore for decades. Tr.
159-162, 713. Plaintiff presented no evidence of possible ownership in
any Defendant, and during his testimony he admitted that he did not know
who owned the barge. Tr. 162.
Garner testified that between 1980-1982 Hanken requested that JGMC
wreck one of his barges and store some salvageable wooden planks from
that wreckage on vessel C. Tr. 710-712. The Snee family did not raise any
objections to this use of vessel C by Hanken, despite the fact that they
owned the property adjacent to the foreshore at that time. Tr.
iv. The Middle Wooden Barge:
The middle wooden barge ("vessel D") has also been in its current
position on the
foreshore for decades. Tr. 159-163, 713. As with vessel C,
Plaintiff states that he does not know who owns the barge. Tr. 162-163.
Garner testified that at some point in the early 1980s, at Snee's
direction Garner wrecked one of Snee's pile drivers and placed the debris
on the Inshore Wooden Barge (see below). In order to gain access to the
inshore barge, Garner testified that he needed to wreck part of vessel D
and place the resulting debris on the remaining portion of that vessel.
Tr. 693-694, 713-714.
v. The Inshore Wooden Barge:
The Inshore barge ("vessel E") is a wooden, flat-bottomed boat that has
also been abandoned in its current location on the foreshore for decades.
Tr. 159-163. A pile-driver belonging to Third-Party Defendant John Snee
collapsed in the early 1980's and became a danger to navigation. Tr.
716-717. Defendant Garner testified that Snee directed Garner to remove
the pile driver and place the resulting debris on the deck of vessel E,
which was on the foreshore adjacent to Snee's (later Plaintiff's)
property. Tr. 714-717.
I find that the evidence introduced did not identify any Defendants as
the owners of the three unnamed wooden barges. Tr. 161-163.
C. Damages: Plaintiff's Proposed Use of the Property
Plaintiff contends that he was unable to use the properties in the
manner which he had hoped because of the presence of the barges.
Specifically, Plaintiff testified as to his "dream" for a development at
175 Ellis Street. Tr. 76. As Defendants summarized, "Plaintiff claims he
had a dream for development of a wedding chapel/catering
center/photography studio/wildlife sanctuary/senior citizen
center/parking lot/residence for his daughter and her family/residence
for himself and his wife," all on the 175 Ellis Street property, Def.
8/20/03 Br. 31; PL Ex. 5; Tr. 46-49, 233,
There were many obstacles standing in the way of Plaintiff's various
plans. First, the area of Staten Island where the 175 Ellis Street
property sits is an area zoned by the City of New York as "M-l" for heavy
industrial use. Tr. 232. Neighboring property and property within visual
proximity includes a shipyard, a cable-laying company, a petrochemical
tank farm, a marina, a sewer outlet, and a railroad. Tr. 556-562, 571.
Plaintiff never applied for (nor presented any evidence that he could
obtain) approval from the city to use the land for commercial or
residential purposes. Tr. 232-235. Furthermore, the numerous barges
offshore (not on the foreshore of the property in question), the
neighboring shipyard's cranes, and the petrochemical tank farm across the
river all impose on the scenery. Pl. Ex. 43.8, 50, 58, 74.2. Plaintiff
planned to use City-owned land on Ellis Street and on Tracy Avenue (which
intersects with Ellis Street), State-owned lands offshore his property,
and land of his neighbor, Defendant Sherry (which Sherry refused to sell
to him) as part of his business venture. Pl. Ex. 5, Tr. 46-49. Plaintiff
presented no evidence that he took any steps to develop his plan, such as
creating a business proposal, obtaining a cost estimate, or architectural
plan (beyond the creation of a schematic drawing). PL Ex. 5, Tr. 215-216.
D. Plaintiff's Return on His Investment
Plaintiff purchased the 169, 171, and 175 Ellis Street property in 1994
for $165,000. Tr. 24. Instead of developing the property into a wedding
chapel or any other commercial purpose,
Plaintiff refurbished the dilapidated two-family home that was
present on the property when it was acquired. These renovations were
completed in 1995. Plaintiff testified that he spent $200,000-$250,000 in
improvements to the property, for a total investment of approximately
$400,000. Tr. 218-219. Plaintiff also subdivided the property into three
separate lots. Stip. Fact 5. Plaintiff sold 169 Ellis Street in 1998 for
$189,000, 171 Ellis Street in 2002 for $290,000, and 175 Ellis Street in
February 2003 for $288,000, for a total of $767,000. Tr. 218-219. Thus in
less than nine years of ownership, Plaintiff's $400,000 investment
yielded a profit of over $350,000.*fn8
E. Rights to the Foreshore
Plaintiff and Defendants agree that all lands beneath the median high
water mark of the Arthur Kill are owned by the State of New York (unless
specifically granted in the form of a "letters patent" by the State of
New York or predecessor sovereign). PL Ex. 85, Tr. 295. This includes the
land between the high and low water marks (the "foreshore"). Plaintiff's
own expert admitted at trial that no grant exists from the State of New
York to lands between the high and low water mark offshore 175 Ellis
Street. Tr. 6, 295, 301; PL Ex. 26, 85. Plaintiff also testified that he
knew that if he were to implement a business plan that included use of
the foreshore, he would need to apply to the State for a grant or lease
of underwater land off his property. Tr. 233-235.
Rather than present proof of a grant from the State, Plaintiff contends
that his deed for the property indicated that he owned the foreshore
adjacent to his property. The deed for the
property dates from an 1829 deed from Abraham Storer Hannah to
James Totten. Plaintiff's deed describes the property as extending "to
the beach at low water." Pl. Ex. 1. Plaintiff argues that this
description, along with similar descriptions contained in past deeds for
the property, is proof that 175 Ellis Street includes all land to the low
water mark. Plaintiff's expert testified at trial, however, that this
description could be mistaken, and that the deeds drafted by Plaintiff
when subdividing the property contained errors. Second Trial Transcript
of 7/29/03 (hereinafter "2Tr.") 5-6, Pl. Ex. 11. The New York Office of
General Services has no record of any grant to Plaintiff for lands
between the high and low water mark. Pl. Ex. 85.
Plaintiff argues that not only were his ownership rights to the
foreshore damaged, but his riparian rights as the owner of 175 Ellis
Street were also infringed by the obstructions. In support of this claim,
Plaintiff submitted photographs into evidence of the obstructions and
their positions on the foreshore. See e.g, PL Ex. 55-59, 70,
71, 95. These photographs were unaccompanied by any indication of scale,
and Plaintiff failed to submit any evidence as to the size of the barges,
or the degree to which they affected his access to the Arthur Kill.
Testimony at trial indicated that the area encompassing the foreshore is
at least 8, 146 square feet. Tr. 359; Pl. Ex. 8. No testimony, however,
indicated to what degree the barges obstructed the foreshore. From the
photographs submitted, I find that while Plaintiff did not have
access to the foreshore across the full frontage of his property, he
did have access from most of his property. After reviewing the
photographs, I find that the barges blocked access between the
Plaintiff's property and navigable water along approximately 25% of the
frontage of Plaintiff's property. Pl. Ex. 95.1.
Contrary to Plaintiffs claim of infringement with his riparian rights,
I find that there was
no evidence submitted that Plaintiff ever attempted to launch,
land, or navigate watercraft of any kind from his property or to his
property from the waterway, or that Plaintiff was obstructed from doing
so. Def. 8/20/03 Br. at 49.
F. Plaintiff's Deed for 175 Ellis Street
i The Dongan Grant;
Plaintiff presented, post-trial, a submission which included a manorial
grant by Governor Thomas Dongan to Captain Christopher Billopp in May,
1687. (hereinafter "Dongan Grant"). This grant gave Billopp a large tract
of land (approximately 1600 acres) in the southern part of Staten Island,
Pl. Ex. B1. Plaintiff contends that 175 Ellis Street is included in this
area. Furthermore, the language of the Dongan Grant includes lands "unto
Low Water marke," a fact Plaintiff contends is dispositive as to the
issue of whether or not he owned the rights to the foreshore at 175 Ellis
Thomas Dongan was the English Royal Governor of New York from
1682-1688. King James n wrote a commission to Dongan, describing his
powers as Governor, which included broad authority to grant territorial
land. Christopher Billopp had helped to overthrow the previous Governor
and was influential in installing Dongan to replace him. See
Field Home, The Conference House Revisited, 9-10 (1990).
Defendants contest the assertion that the Dongan Grant included 175 Ellis
Street, that the Grant itself was valid, and that even if the Plaintiff's
assertions are correct, the State of New York confiscated the land in
1779 through a legislative act.
Captain Billopp built a manor house on his property, later known as the
House," which still stands in Conference House Park, on Staten
Island. This name originated from the September 11, 1776 peace conference
between the British and the Colonists (represented by Benjamin Franklin,
John Adams and Edward Rutledge) that was held on the property. At the
time, the property was owned by Billopp's great-grandson, also named
Christopher Billopp, who was nicknamed the "Tory Colonel." The younger
Billopp organized the Staten Island militia, named "Billopp's Corps,"
which fought with the British against the American Colonists.
See Home at 23.
ii. 1779 Act of Attainder
During the War of Independence, the State of New York passed an Act of
Attainder in 1779 which found that Billopp was a "notorious offender,"
who, among others, was an adherent of the King and an enemy of the State
who attempted to subvert the government and liberties of the State.
Billopp was thus attainted of the felony of treason. The Act provided
that the Billopp property was forfeited to and vested in the people of
the State of New York, and Billopp was banished from the State. Should he
later be found within the State's borders, Billopp was to be executed
"without benefit of clergy." Brief in Opposition to Plaintiff's
Post-Trial Submissions (hereinafter "Def. 10/10/03 Br") Ex. 6 at 174.
Since Staten Island was occupied by British troops at the time of the
Act, Billopp subdivided and attempted to sell his property (which
realized only two-thirds of its value because the American Colonists
would seize the property if they won the war). Harry B. Yoshpe, The
Disposition of Loyalist Estates in the Southern District of New
York, 49 (1967). Plaintiff submitted documents post-trial alleging
that Billopp sold property containing the future 175 Ellis
Street property to Samuel Ward on May 1, 1781, and that the
language in the deed from this sale specified the land as reaching to the
low water mark. Second Affidavit of William France (hereinafter "France
Aff.2d") at 6-7. After the War of Independence, Billopp abandoned the
property and fled to Canada, where the King gave him a large plot of land
in New Brunswick as compensation for his loss of his Staten Island
property. Ira K. Morris, Morris's Memorial History of Staten Island.
New York, Vol. I, 150 (1900).
After confiscation, the New York State Commissioners of Forfeiture sold
the Billopp property in 1784 to Thomas McFarren of New York City. Def.
10/10/03 Br. Ex. 10. The deed does not purport to grant lands to McFarren
beyond the high-water mark. Id, Defendants therefore argue that
between the time of the Dongan grant and the Hannah-Totten deed, there
was a break in title to the foreshore such that "[p]laintiff could never
obtain the benefit of the Dongan Grant to Billopp, even if that grant was
legitimate." Def. 10/10/03 Br. at 13.
In March 1790, McFarren sold the property to Caleb Ward and indicated
in the deed that the property extended to the low water mark. France Aff.2d
at 5, Ex. EE & FF (hereinafter "Caleb Ward deeds"). Even though
the previous deed from the State to McFarren did not contain language
granting ownership of the foreshore, Plaintiff argues that "the McFarren
conveyance is the briefest of documents and does not purport to give a
detailed description of lands." Plaintiff's Memorandum of Law In Reply to
Defendants' Opposition (hereinafter "PL 12/17 Br.") at 3-4. Plaintiff
argues that consequently, "[i]n order for McFarren to identify the lands
he purchased with legal particularity, reference to the Billopp deeds to
the persons identified would be necessary." Id. at 4.
Defendants question the admissibility of the post-trial submissions that
brought out facts surrounding the Dongan grant and subsequent history.
Plaintiffs Letter Brief
of 1/8/04 at 3. Furthermore, Defendants argue that "[i]f Plaintiff's
voluminous post-trial submissions prove anything, it is that Plaintiff
failed at trial to prove he owned [the foreshore]."
Id. (emphasis in original).
iii. The Incorporation of the Village of Tottenville:
Plaintiff supplemented his claim of ownership to the foreshore by
presenting, post-trial, an Act of the New York State Legislature in 1869,
which incorporated the Village of Tottenville. Act To Incorporate The
Village of Tottenville, Laws of New York, Chap. 388, 92d Sess. (1869).
This Act defines the boundaries of the Village as including lands to the
low water mark. Plaintiff argues that since the deed to 175 Ellis Street
recording the property as being to the lower water mark goes back to
1829, the incorporation of Tottenville in 1869 implicitly affirmed the
content of the 1829 deed. Pl. 8/20/03 Br. at 89. Defendants deny the
validity of the Act, showing that it was superceded by another
legislative Act in 1871, and later nullified in its entirety in 1898 as a
result of the formation of the City of New York. Def. 10/10/03 Br. Ex. 1,
G. Letter from the New York Office of General Services
Plaintiff submitted an unimpeached and uncontradicted letter from the
New York Office of General Services ("OGS"), dated July 14, 2000. PL Ex.
85. The Commissioner of General Services has jurisdiction over a variety
of State-owned lands, including ungranted underwater lands. Id.
The letter was composed by a "Real Estate Specialist" at OGS and states
that the State had not granted any rights to the underwater land for
Plaintiff's property. Id. The OGS did, however, confirm that
Defendants Garner and Tottenville Marina do have underwater
that a more accurate title search could reveal that Plaintiff
shares in the grant enjoyed by Garner and the Marina. Plaintiff, in his
Post-Trial Memorandum of Law, questioned the accuracy and persuasiveness
of the OGS letter, asserting that it has no legal effect and "is merely
informational."*fn9 Plaintiff's Post-Trial Memorandum of Law Pursuant to
Memorandum and Order Dated 17 September 03 at 14. He has failed, however,
to submit evidence that challenges the accuracy of the letter, and
furthermore admits that no State grant to the foreshore exists. Pl.
12/17 Br. at 7.
III. FINDINGS OF LAW
Though many issues of law arose at trial, four main issues constitute
the basis for my decision. First, Plaintiff submitted numerous post-trial
documents in an attempt to bolster his case, all of which Defendants
contend are inadmissible. The second issue is whether or not Plaintiff
owns the land between the high-water mark and the low-water mark (the
"foreshore"). At no point did Plaintiff allege that any of the
obstructions encroached upon the high-water mark and onto the dryland of
his property. Plaintiff needed to prove physical interference with his
property in order to maintain trespass and nuisance claims. Third,
Plaintiff asserted that Defendants interfered with his riparian rights.
Finally, if liability and damages were found, Defendants argue that
Plaintiff's failure to mitigate his damages is a bar to recovery,
A. Admissibility of Post-Trial Submissions
Plaintiff's numerous post-trial exhibits, including the Dongan Grant
and the Caleb Ward
Deed, were submitted as part of Plaintiff's Proposed Findings of
Fact and Conclusions of Law and his Memorandum of Law in Reply to
i Applicable Standard
Defendants argue that this submission was a violation of Fed.R. Civ.
Proc. 52, which limits proposed post-trial findings of fact and
conclusions of law to discussion of evidence submitted at trial. See
United States v. For ness, 125 F.2d 928, 942 (2d Cir.), cert.
denied sub nom City of Salamanca v. United States. 316 U.S. 694
(1942): United States v. Local 1804-1. Int'l Longshoremen's
Ass'n, 831 F. Supp. 167, 169 (S.D.N.Y. 1993) (holding that "[a]
party who realizes, with the acuity of hindsight, that he failed to
present his strongest case at trial, is not entitled to a second
opportunity by moving to amend a finding of fact or a conclusion of
law."). Defendants argue that Fed.R.Civ.Proc. 59 provides the standard
for introducing new facts or theories, pre-judgment, that were not
previously presented at trial. See In re Rule, 38 B.R, 37, 42
(D.Vt. 1983), citing Seymour v. Potts & Callahan Contracting Co.,
2 F.R.D. 38, 39-40 (D.D.C., 1941) (stating that while there is no express
provision in Fed.R.Civ.Proc. 59 for a motion to rehear, there is
implied recognition of such a procedure).
Plaintiff argues for inclusion of the newly discovered evidence under
Fed.R.Civ.Proc. 52, 59, 60, and 61. Specifically, Plaintiff cites Fed.
R. Civ. Proc. 60(b) as the standard for introduction of newly discovered
evidence. Mr. France's main argument for failing to pursue these
documents earlier rests on the ground of "excusable neglect." See In
re Paine Webber Short Term U.S. Gov't Income Fund, 1995 WL 512703
(S.D.N.Y. August 29, 1995), citing Pioneer Inv. Servs. Co. v.
Brunswick Assoc., 507 U.S. 380, 394-395 (1993) (holding that "the
excusable neglect inquiry `is at bottom an equitable one' that
should be made by considering `the danger of prejudice to the [non-moving
party], the length of the delay and its potential impact upon judicial
proceedings, the reason for the delay, including whether it was in the
reasonable control of the movant, and whether the movant acted in good
While it is not entirely clear which Federal Rule of Civil Procedure
authorizes district courts to reopen an evidentiary record prior to
judgment, it is clear that district courts have the discretion to grant
such a motion: such an application to reopen the record is committed to
the sound discretion of the district court. See Zenith Radio Corp.
v. Hazeltine Research, Inc., 401 U.S. 321, 331-32, reh'g
denied. 401 U.S. 1015 (1971); Matthew Bender & Co., Inc. v.
West Publ'g Co., 158 F.3d 674, 679 (2d Cir. 1998) ("A district
court's decision to reopen the proof to allow a party to submit
additional evidence is subject to its sound discretion"); Dow Chem.
Pac., Ltd, v. Rascator Mar. S.A., 782 F.2d 239 (2d Cir. 1986)
(same); See also Caracci v. Brother Int'l Sewing Mach. Corp.,
222 F. Supp. 769, 771 (E.D. La. 1963) aff'd., 341 F.2d 377 (5th
Cir. 1964) (holding that a trial court "may properly look with more favor
upon a motion to reopen made after submission, but before any indication
by it as to its decision") (internal citations omitted); 12 James Wm.
Moore et al., Moore's Federal Practice § 59.13(3)(c) (3d ed. 2002)
(stating that pre-judgment motions to reopen are separate from
Rule 59 motions but that district courts have discretion to grant such
The Second Circuit has not yet announced a specific standard for
exercising the district court's discretion in ruling on such a motion.
The Second Circuit has, however, stated that:
"[o]nly `reasonably genuine surprise' on the part
of the appellant, Moyland v. Siciliano,
292 F.2d 704, 705 (9th Cir. 1961), combined with
an assertion of the nature of the additional
evidence, Berns v. Pan Am. World
667 F.2d 826, 829 (9th Cir. 1982), would give us
sufficient reason to remand for the taking of
Air et Chaleur. S.A. v. Janeway, 757 F.2d 489, 495 (2d Cir.
1985); see also Matthew Bender & Co., 158 F.3d at 679
(upholding district court's decision to permit party to re-open a hearing
where (1) additional evidence was material, (2) opposing party had
opportunity for cross-examination, and (3) opposing party suffered no
Further, the Second Circuit has cited Garcia v. Woman's Hosp.
97 F.3d 810, 814 (5th Cir. 1996) ("Among the factors the trial court should
examine in deciding whether to allow a reopening are the importance and
probative value of the evidence, the reason for the moving party's
failure to introduce the evidence earlier, and the possibility of
prejudice to the non-moving party") with approval. See Matthew
Bender & Co., 158 F.3d at 679. District courts in this circuit
seem to consider similar factors in determining whether to reopen the
evidentiary record before judgment has been made in actions heard without
a jury. See Shred-It USA, Inc. v. Mobile Data Shred. Inc.,
238 F. Supp.2d 604, 607 (S.D.N.Y. 2002) (holding post-trial submissions
inadmissible where there was no compelling reason why the trial record
should be reopened, the failure to introduce the post-trial submission at
trial reflected lack of due diligence, and admission of evidence would
have caused undue prejudice); John v. Sotheby's. Inc.,
858 F. Supp. 1283, 1288 (S.D.N.Y. 1994) (holding that when appraising a
party's motion to reopen the record post-trial, "the court must consider
(1) whether or not the moving party's failure to submit evidence was the
result of its own lack of diligence; (2) the extent to which reopening
the record might prejudice the nonmovant; and (3) where the interests of
justice lie."). I shall consider the issue of Plaintiff's post-trial
submissions under the three-prong test articulated in John v.
ii. Movant's Diligence
With reference to the first prong, Plaintiffs attorney France argues in
his first post-trial affidavit that the Dongan Grant was "not a document
that I should reasonably have searched for before preparation of
post-trial submissions . . . [or] produce during pre-trial discovery."
Affidavit of William France (hereinafter "France Aff.") at 4. Counsel
argues that he considered deeds dating back as far as 1829 recording the
boundary to the low-water mark as sufficient to support Plaintiff's
nuisance and trespass claims, and that the Dongan Grant was more "a legal
premise or justification for the waterside boundary recorded in the
Defendants, however, disputed Plaintiff's claim of ownership to the
foreshore as early as their pre-trial memorandum. Def. Pre-Trial Mem. at
14. Furthermore, Defendants argue that Plaintiff's lack of diligence is
evidenced by the fact that the post-trial submissions are public records
that have been available for over 200 years, and thus were not documents
withheld by Defendants. Def. 10/10/03 Br. at 5-6. Nor are they "new
evidence" which was not in existence prior to trial. Id.
Plaintiff's counsel admits that he did not attempt to locate the
documents until after the conclusion of trial, and that he had no
difficulty locating them at that time. France Aff. at 2-4. Defendants
argue that such conduct by Plaintiffs counsel "is a per
se failure to exercise the diligence required when attempting
to introduce new evidence, and provides clear grounds for exclusion."
Def. 10/10/03 Br. at 6.
I find that if admitted, these documents would not simply bolster
Plaintiffs claim to the
foreshore, as Mr. France argued. The documents, if admitted, would
have more of a positive effect on Plaintiff's claim than any evidence he
proffered at trial. Yet Plaintiff's counsel had ample time prior to trial
to discover the documents, which have been in a New York State repository
for over 200 years. The lack of diligence by Plaintiffs counsel in
pursuing this evidence and bringing it to the court's attention in a
timely fashion was the result of his own actions (or inaction).
iii. Prejudice to Non-Moving Party
With respect to the second prong, Defendants argue that allowing such
evidence to be admitted without the benefit of discovery or
cross-examination would be a highly prejudicial violation of Defendants'
due process rights. See Townley v. Heckler, 748 F.2d 109, 114
(2d Cir 1984); Graves v. Am. Express, 175 Misc.2d 285, 286,
669 N.Y.S.2d 463 (N.Y.Sup.Ct. 1997) ("a person's constitutional right
to due process of law includes the basic right to cross-examine.");
Matter of Hoffman, 138 A.D.2d 785, 786-787, 525 N.Y.S.2d 423
(3d Dep't. 1988); see also Fed.R.Civ.Proc. 26 (detailing the
"General Provisions Governing Discovery").
Plaintiff believes the fact that Defendants responded to Plaintiff's
first round of post-trial exhibits (including the Dongan Grant) by
submitting exhibits of their own is significant. Plaintiff argues that
because Defendants have submitted post-trial evidence in response to
Plaintiff's exhibits, they cannot claim prejudice with regard to
subsequent proposed exhibits submitted by Plaintiff (such as the Caleb
I find that Defendants were not provided with the documents during
discovery, nor were they permitted their right to cross-examination at
trial, and thus admission of these documents
would be prejudicial to Defendants.
iv. Interests of Justice
Mr. France, citing Ferrell v. Trailmobile. Inc.,
223 F.2d 697, 698 (5th Cir. 1955), further argues that the documents should be
admitted to prevent injustice. In Ferrell, the Fifth Circuit
held that "conclusive evidence" submitted post-trial must be considered
despite the defendant's lack of diligence in finding dispositive
evidence, once that evidence was found. Ferrell was
distinguished in Niedland v. United States, 338 F.2d 254, 260
(3d Cir. 1964), on the grounds that the newly discovered evidence at
issue in Niedland only raised a doubt as to the correctness of
the judgment, rather than providing conclusive proof as in
Ferrell, I find that the instant case is analogous to
Niedland, in that Plaintiff's post-trial submissions
constituted evidence, not conclusive proof, that he owned the foreshore.
I find that Defendants disputed Plaintiff's claim of ownership to the
foreshore long before trial, and therefore arguments that the deed was
defective should have been anticipated. Plaintiff and his lawyer made an
affirmative choice not to pursue these documents, and to permit the
introduction of such evidence in these circumstances would grant
Plaintiff "a second bite of the apple" to correct his oversight. See
Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). The
interests of justice do not dictate granting Plaintiff this second
v. Plaintiffs Post-Trial Submissions are Inadmissible
I am persuaded by Defendants' arguments on this question. Under the
John v. Sotheby's test, Plaintiff's lack of diligence is a
result of his own conduct; the evidence, if admitted, would
be highly prejudicial to Defendants, and the interests of justice
do not support the admission of the evidence. For these reasons, I find
that all evidence submitted by Plaintiff post-trial is inadmissible, and
therefore the court will not consider this evidence.
B. Ownership of the Foreshore:
Unless specifically granted, states are the owners of all lands subject
to the ebb and flow of the tide (i.e. the foreshore), Phillips
Petroleum Co. v. Mississippi, 484 U.S. 469, 476 (1988) (holding that
"long-standing precedents . . . hold that the States, upon entry into
the Union, received ownership of all lands under waters subject to the
ebb and flow of the tide."). While conducting a state-by-state analysis
of this issue, the United States Supreme Court has noted that "[i]n New
York, it was long considered as settled law that the State succeeded to
all the rights of the crown and parliament of England in lands under tide
waters, and that the owner of land bounded by a navigable river within
the ebb and flow of the tide had no private title or right in the shore
below high-water mark . . ." Shively v. Bowlby,
152 U.S. 1, 20-21 (1894).
As stated above, Plaintiff admitted at trial that the State did not
grant any rights or property to any previous owner of the 175 Ellis
Street property. Furthermore, Plaintiffs own expert witness testified
that errors in deeds are common, and that some of Plaintiff's own deeds
contained errors. In light of the fact that no external proof exists that
the foreshore was granted to the Plaintiff, I find that title to the 175
Ellis Street foreshore remains in the State,
C. Proof of Ownership of the Foreshore:
Plaintiff asserts that his right to the foreshore did not derive from a
grant from the State,
but instead from a colonial grant from Thomas Dongan, the Governor
of Staten Island.
Even if the court were to consider Plaintiff's post-trial submissions,
including the Dongan grant and the Caleb Ward deeds, the court would find
that Plaintiff did not own the foreshore.
The Dongan Grant transferred to Christopher Billopp approximately 1600
acres of property on Staten Island and designated that the foreshore was
included in the boundary of the property. Pl. Ex. B1. New York courts
have found, under the public trust doctrine, that large grants of land to
private individuals are ultra vires and void. See Marba
Sea Bay Corp. v. Clinton St. Realty Corp., 272 N.Y. 292, 296 (1936)
(holding, in reference to an eleven mile grant of the foreshore, that
"[n]either the King nor the State could grant away for private purposes
so much of the public's rights in the lands underwater."); Coxe v.
State, 144 N.Y. 396, 406 (1895) (holding that "the conclusion is
inevitable that the Parliament and the Crown together were not competent
to grant to a private corporation, for private purposes, the seacoast
around the island below the shore line, without violating established
principles of law."); see also Evans v. City of Johnstown,
410 N.Y.S.2d 199, 207 (N.Y.Sup.Ct. 1978) (holding that grants from
Parliament and the Crown for "purely private purposes" are ineffective).
Though the Dongan Grant was not as large as the one at issue in
Marba, the size of the grant and the fact that it was issued
for purely private purposes leads me to find that the Dongan grant
violated the public trust doctrine. Plaintiff therefore cannot claim
title to the foreshore adjacent to his property from this source.
Furthermore, while the Dongan Grant to Christopher Billopp did indeed
encompass lands to the low water mark, this land was later confiscated by
the State after Captain Billopp's attainder for treason during the
Revolutionary War. The 1779 Act of Attainder has been found to be valid
by the Second Circuit numerous times, as recently as 1992, See
Robins Island Pres,
Fund. Inc. v. Southold Dev. Corp., 959 F.2d 409, 415 (2d
Cir. 1992) (holding that "[i]n adjudicating property rights affected by
New York's Act of Attainder of 1779, neither the Supreme Court nor any
court of New York State has ever declared the Act to be invalid.")-*fn10
While Plaintiff does not dispute the validity of the 1779 Act, he does
claim that the property the State sold McFarren was the
identical property that was confiscated from Billopp,
i.e. including the foreshore. Plaintiff does not dispute the
fact that the deed to McFarren contained no mention of the "low water
mark," but instead argues that since the Caleb Ward deed included the
foreshore, McFarren must have believed that he owned it.
What McFarren did or did not believe is immaterial. The State did not
include such language in the deed. Def. 10/10/03 Br. Ex. 10. In light of
the public interest involved, I find that McFarren did not receive a
grant to the foreshore.
Consequently, Plaintiff was unable to show, even with the inclusion of
the inadmissible post-trial submissions, that he possessed the foreshore
adjacent to 175 Ellis Street. Not only was the original Dongan Grant a
violation of the public trust doctrine, but the effect of the Grant was
later superceded by the 1779 Act of Attainder.
D. Cause of Action in Trespass
The essence of a trespass, a state law claim, is an injury to the right
of possession. 104 N.Y. Jur.2d, Trespass § 10. The Second Circuit has
described this cause of action under New
York law as "the interference with a person's right to possession
of real property either by an unlawful act or a lawful act performed in
an unlawful manner." N.Y. State Nat. Org. for Women v. Terry,
886 F.2d 1339, 1361 (2d Cir.). cert. denied 495 U.S. 947 (1990)
(finding summary judgment on a trespass claim to be appropriate against
anti-abortion groups protesting on an abortion clinic's property),
citing Ivancic v. Olmstead, 66 N.Y.2d 349, 352, cert.
denied, 476 U.S. 1117 (1986): see also Phillips v. Sun Oil
Co., 307 N.Y. 328, 331 (1954).
To succeed in an action for trespass, Plaintiff must prove that there
was a wrongful or unjustifiable entry upon his land. Scribner v.
Summers, 84 F.3d 554, 557 (2d Cir. 1996) (holding that under New
York law, "trespass is the intentional invasion of another's property.").
As explained above, the barges at issue are located on State-owned land.
I find that Plaintiff has failed to show interference with his right of
possession of the land, and consequently his trespass claim fails.
E. Infringement of Riparian Rights
Even if his trespass claim should fail because he cannot prove
ownership to the foreshore, Plaintiff further argues that the barges
constitute a physical interference with his riparian rights as upland
owner of 175 Ellis Street. PL 8/20/03 Br. at 99. While most of the
applicable cases for this issue are relatively old, New York's highest
court has reaffirmed recently that "riparian owners still enjoy their
full panoply of rights, subject only to the long-recognized navigational
servitude." Adirondack League Club, Inc. v. Sierra Club et al.,
92 N.Y.2d 591, 603 (1998).
Plaintiff does not claim that the State granted or leased to him the
land under water offshore his property. See McKinney's Public
Lands Law § 75 (authorizing "grants, leases,
easements, and lesser interests, including permits, for the use of
state-owned land underwater . . . consistent with the public interest
in the use of state-owned lands underwater for purposes of navigation,
commerce, fishing, bathing, and recreation"); Tr. Trans. 55; Pl, Ex. 85.
In the absence of such a grant or lease, a riparian owner only has a
right to free ingress and egress to abutting navigable waters. See
Oelsner v. The Nassau Light and Power Co., 134 A.D. 281, 286,
118 N.Y.S. 960, 964 (2d Dep't. 1909) (finding that the principal attribute of
riparian use is "access to and egress from the open water."); see
also Yates v. City of Milwaukee, 77 U.S. 497, 504 (1870) (holding
that riparians owners have the right of "access to the navigable part of
the river . . . the right to make a landing, wharf or pier . . .
subject to such general rules and regulations [of] the legislature.");
Sound Marine & Mach. Corp. v. Westchester County,
100 F.2d 360, 363 (2d Cir. 1938) (holding that appellant landowner who
complained of a sewer pipe being laid offshore his property had "the
incorporeal right to free ingress and egress to abutting navigable waters");
Allen v. Potter, 316 N.Y.S.2d 790 (N.Y.Sup.Ct. 1970)
(finding, in reference to riparian rights, that, "[generally] speaking
such rights are: (1) [u]se of water for general purposes as bathing and
domestic use; (2) [w]harf out to navigability; (3) [a]ccess to navigable
Plaintiff argues that any interference, however slight, is an
interference with his riparian rights. For this proposition, Plaintiff
cites Tiffany v. Town of Oyster Bay, et al., 234 N.Y. 15
(1922), in which the town erected a series of bathhouses along the
filled-in foreshore in front of Tiffany's property. In Tiffany,
the plaintiffs foreshore had been filled in with sand and soil, and the
defendant-town constructed a substantial number of large bungalows on the
foreshore. Tiffany, 234 N.Y. at 18-19. These structures blocked
access to navigation along approximately
fifty percent of the frontage of the property. Id. The Court of
Appeals held that "[t]he town may not fill in, occupy, and obstruct with
buildings the foreshore . . . so as to interfere with the rights of
owners of the upland, although they may still be able to reach the water.
Their rights pass along the whole frontage of their property."
Id., at 23. It would be possible to read this language to hold
that any interference with access to the water, no matter how small,
violates the upland owner's riparian rights. However, such a reading is
problematic for two reasons. First, such a reading is far broader than
the actual facts of Tiffany, where the defendant had blocked
approximately fifty percent of the frontage of the plaintiff's property.
As a result, there can be no question that the language is merely
Second, subsequent New York cases indicate that this more narrow
reading is correct. Cases citing Tiffany have largely
recognized that the upland owner's right of access is not absolute;
rather, riparian owners have the mere right to reasonable access to
navigable waters. See e.g. Town of Oyster Bay v. Commander Oil
Corp., 734 N.Y.S.2d 108, 113 (2001)(hereinafter "Commander")
(holding, after analysis of Tiffany and other similar cases,
that "well over a century of common law adjudication has established the
riparian owner's right to reasonable access"). In Commander,
the Court of Appeals ruled that a riparian owner could dredge if dredging
was necessary to preserve reasonable access to navigable water and did
not unreasonably interfere with the owner of the underwater land (the
foreshore). Commander, 734 N.Y.S.2d at 575-576. The court
noted, however, that "[t]he riparian owner's right is not to maintain the
foreshore in any fixed condition, but rather to enjoy reasonable access
to navigable water." Id. 734 N.Y.S.2d at 574-575.
"The scope of what is a reasonable, safe and convenient use of the
riparian rights has been gradually defined on a case-to-case
foundation." Haher's Sodus Point Bait Shop. Inc. v. Wigle,
139 A.D.2d 950, 951, 528 N.Y.S.2d 244, 246 (4th Dep't. 1988), citing
Town of Hempstead v. Oceanside Yacht Harbor. Inc., 328 N.Y.S.2d 894,
896 (2d Dept 1972) (citing Tiffany, and holding that "[t]he
right of access comprehends the reasonable, safe, and convenient use of
the foreshore for navigation); see also Stutchin v. Town of
Huntington, 71 F. Supp.2d 76, 100-101 (E.D.N.Y. 1999), Bravo v.
Terstiege, 196 A.D.2d 473, 601 N.Y.S.2d 129 (2d Dep't. 1993). The
Haher's court conducted this reasonable access analysis looking
"to the character and size of the . . . activities on the land under
water to determine whether under the circumstances they represent a
reasonable exercise of [the] right of access." Haher's, 528
N.Y.S.2d at 265 (holding that "[petitioner's] construction of commercial
dockage over more than an acre-and-a-half of public waters . . .
exceeded the reasonable scope of the common law rights it has acquired by
virtue of its ownership of a small parcel of riparian land.").
In the instant case, many factors are relevant to an analysis of
whether Plaintiff had "reasonable" access to the Arthur Kill. First, it
is apparent from aerial photographs and from relevant testimony that the
presence of sunken or abandoned barges offshore Plaintiff's property is
not unique in the area. Plaintiff himself submitted an ACOE list of
hundreds of derelict vessels in the Arthur Kill. PI. Ex. 86, 88. Placing
vessels on the foreshore of Plaintiff's property appears to be more
reasonable in light of the local practice.
On the other hand, the policy of the State "has been directed toward
encouraging the private development of waterfronts, subject only to the
condition that the use be reasonable and not obstructive of navigation."
Town of Hempstead, 328 N.Y.S.2d at 898. Though Plaintiffs
stated goal was the development of his property, the 175 Ellis Street
property was located in an
area zoned for heavy industry. Even if the five barges at issue had
been removed, Plaintiff would still have been attempting to conduct a
commercial enterprise in front of a backdrop of other abandoned barges, a
petrochemical plant, a shipyard, and a marina.
Another relevant factor to consider for this reasonable access inquiry
is the offer made by Garner to remove the two steel barges, which
Plaintiff declined. Whatever infringement Plaintiff suffered respecting
his access to navigation would have been considerably diminished if he
had obtained a permit from the ACOE.
Finally, had Plaintiff provided evidence that the barges prevented him
from reasonable access to the Arthur Kill, such evidence would have
weighed heavily in favor of this claim. Yet, as stated above, Plaintiff
presented no evidence of having ever lived at 175 Ellis Street, of ever
attempting to launch or land a water craft at the property, or of ever
navigating the waters of the Arthur Kill offshore his property. Tr. 7,
55. Furthermore, with the exception of photographs, Plaintiff presented
no evidence indicating interference with his navigational rights, or the
extent of any alleged interference. Consequently, there is nothing in the
record to show that Plaintiff was unable to freely exercise his rights of
egress and ingress. Plaintiff never exercised, or attempted to exercise,
his riparian rights of navigation, and in light of the "reasonableness"
analysis above, has failed to meet his burden to present evidence that
Defendants prevented him from having reasonable access to the waterway.
For these reasons, Plaintiff's claim of interference with riparian rights
F. Cause of Action in Nuisance
Plaintiff contends that the presence of the barges upon his land was
grounds for a state
claim of private nuisance.*fn11 In New York, a private nuisance is
defined as (1) an interference substantial in nature, (2) intentional in
origin, (3) unreasonable in character, (4) with a person's property right
to use and enjoy land and, (5) caused by another's conduct in acting or
failure to act. See Copart Indus. Inc. v. Consol. Edison Co. of
N.Y. Inc., 41 N.Y.2d 564, 570 (1977). As a matter of law, the
presence of unsightly objects, or eyesores, does not constitute
substantial interference with a person's property right (even if placed
intentionally). See e.g. Dugway. Ltd. v. Fizzinoglia,
166 A.D.2d 836, 837, 563 N.Y.S.2d 175, 176-177 (3d Dep't 1990) (holding that
plaintiff could not pursue an action for private nuisance against an
adjoining landowner who intentionally placed debris and an uninhabitable
trailer in close proximity to main entrance to developer's property in
order to create an eyesore).
Under the first and fourth prongs of this test, in order to prove his
claim of private nuisance Plaintiff must have shown that there was an
invasion of or interference with his land. Copart, 41 N.Y.2d at
569. As discussed above, Plaintiff was unable to prove at trial that he
is the owner of the land upon which the barges now rest. Since no
invasion of Plaintiff's land was shown, examination of the other prongs
of the Copart test are unnecessary, and Plaintiffs claim of
private nuisance is denied.
As an alternative, Plaintiff argues that even if he does not own the
foreshore, his interest as riparian upland owner of 175 Ellis Street is a
valid basis for a nuisance claim. Pl. 8/20/03 Br. at 102-105. Plaintiff
cites the Restatement (Second) of Torts § 8 21E, which states that
"[f]or a private nuisance there is liability only to those who have
property rights and privileges in respect to the use and enjoyment of the
land affected, including . . . b) owners of easements and profits in
the land." Rest.2d Torts § 821E. As explained above,
Plaintiff's only interest in the foreshore is that of an easement
providing free ingress and egress to the abutting navigable waters. As I
have already determined Plaintiff's interest in and enjoyment of this
right was not disturbed by the presence of the barges, Plaintiff cannot
maintain his nuisance claim based on this theory.
G. Plaintiff's Failure To Mitigate Damages
Even if Plaintiff had proven that Defendants trespassed on Plaintiff's
land, Plaintiff's claim would fail, insofar as it relates to the two
steel barges, because Plaintiff did not mitigate his damages. New York
courts adhere to the universally accepted common law principle that a
harmed plaintiff must mitigate damages. Air Et Chaleur, 757
F.2d at 494 (holding that the district court properly applied New York's
mitigation doctrine against plaintiff stockholders who brought suit for
breach of contract.); see also Hamilton v. McPherson, 28 N.Y. 72,
76-77 (N.Y. 1863) (requiring "reasonable exertions to render the
injury as light as possible").
Defendants introduced testimony that they agreed to remove the steel
barges for free so long as Plaintiff obtained permits for such action
from the ACOE. Tr. 748-749, 778-779. Plaintiff countered this assertion
by arguing that he did not believe the offer to be genuine, so he did not
act on it. Pl. 8/20/03 Br. at 30. Plaintiff produced no other evidence
that he took any steps, other than filing this lawsuit, to limit the
effects of these barges. Had Plaintiff followed through on Garner's
offer, his damages from the steel barges would be zero, as there is no
fee required for an ACOE permit. 33 C.F.R. § 330.*fn12 I find that
Plaintiff, with regard to the steel
barges, thus failed to perform his duty to mitigate his damages.
H. Adverse Possession
Plaintiff raised an argument in his last post-trial submission that he
possessed the foreshore through adverse possession. Pl. 12/17 Br. at 7-8.
Even ignoring the lateness of this argument, Plaintiff's claim would
In New York, claims for adverse possession under a written instrument
are governed by statute:
Where the occupant or those under whom he claims
entered into the possession of the premises under
claim of title, exclusive of any other right,
founding the claim upon a written instrument, as
being a conveyance of the premises in
question . . . and there has been a continued
occupation and possession of the premises included
in the instrument . . ., or of some part thereof,
for ten years, under the same claim, the premises
so included are deemed to have been held
adversely . . .
Real Property Actions and Proceedings Law § 511 (McKinney's 1962)
(hereinafter "RPAPL § 511).
Plaintiff submitted evidence that the Snees had kept tugs and barges on
the foreshore since 1974. Pl. 12/17 Br. at 8. Furthermore, the deed to
his property stated that he held title to the foreshore. Pl. Ex. 1.
In New York, however, "the State's sovereign title is inalienable
except by grant." Hawkins v. State, 283 N.Y.S.2d 615, 621 (N.Y.
Ct. Cl. 1967). In Hawkins, the plaintiff claimed that the deed
for the property conveyed to him included waters of the East Bay (which
is part of the navigable waters of Lake Ontario). The court held that the
while strong evidence . . . cannot serve to
establish title against the State,
absent a showing that the State has ever
relinquished, alienated or transferred its
sovereign right of ownership by express
grant . . .; nor may claimants found a title by
adverse possession under claim of title based on
the  deed for to do so would deprive the State of
its inalienable sovereign power, the existence of
which may not be doubted."
Id; see also City of New York v. Sarnelli Bros. Inc.,
280 A.D.2d 573, 574, 720 N.Y.S.2d 555, 556 (2d Dep't. 2001) (holding that
"lands held by a municipality in its governmental capacity may not be
lost by adverse possession"); Gunn v. Bergquist, 108 N.Y.S.2d 644,
646-647 (N.Y.Sup.Ct. 1951) (holding that "tidal lands . . .
which the town holds in a governmental capacity may not be alienated and
hence may not be the subject of acquisition by adverse possession.")
Plaintiff could not adversely possess the foreshore adjacent to his
property, since as a navigable waterway it is inalienable except by
grant. Hawkins, 283 N.Y.S.2d at 61. As such, I find that
Plaintiff's claim of adverse possession fails.
Plaintiff asserted claims of trespass, nuisance, interference with
riparian rights, and adverse possession. The trespass and nuisance claims
required Plaintiff to prove either a grant from the State of the
foreshore, or ownership thereof. Even considering Plaintiff's post-trial
submissions, Plaintiff did not prove that he owned the foreshore, and
therefore his first two claims are denied.
Next, Plaintiff claimed that the obstructions interfered with his
riparian rights. Plaintiff failed to meet his burden of proving that he
did not have reasonable access to the waterway in order to exercise his
navigational rights. As such, Plaintiff's claim in this regard is denied.
Furthermore, even if Plaintiff had proven that Defendants trespassed on
Plaintiff's claim with regard to the Purple barge and the S&B4
would fail because Plaintiff did not mitigate his damages.
Finally, Plaintiff claimed that he obtained title to the foreshore
adjacent to his property by adverse possession. Navigable waterways are
inalienable except by grant, and therefore his adverse possession claim
For the foregoing reasons, judgment shall be entered for Defendants on
Defendants have asked this court, in light of Plaintiffs inadmissible
post-trial submissions, to impose sanctions pursuant to
28 U.S.C. § 1927. This section holds attorneys personally liable for excess
costs if the attorney "multiplies the proceedings in any case unreasonably
and vexatiously." 28 U.S.C. § 1927. Courts in this circuit construe the
statute "narrowly and with great caution, so as not to stifle the
enthusiasm or chill the creativity that is the very lifeblood of the
law." Mone v. C.I.R., 774 F.2d 570, 574 (2d Cir. 1985)
(internal citations omitted).
The purpose of the statute is to avoid dilatory tactics, to deter
unnecessary delays in litigation, and to deter bad faith conduct by
attorneys. See United States v. Int'l Bhd. of Teamsters. Chauffeurs.
Warehousemen and Helpers of Am. AFL-CIO, 948 F.2d 1338, 1345 (2d
Cir. 1991); Hudson Motors P'ship v. Crest Leasing Enters.
Inc., 845 F. Supp. 969, 978 (E.D.N.Y. 1994);Herrera v.
Scully. 143 F.R.D. 545, 551-552 (S.D.N.Y. 1992). Furthermore, §
1927 "requires a clear showing of bad faith," unlike the objective
standard of Fed.R.Civ.Proc. 11. Novelty Texfile Mills. Inc. v.
Stern. 136 F.R.D. 63.72-73 (S.D.N.Y. 1991): see also Int'l
Bhd. of Teamsters, 948 F.2d at 1345 ("Bad faith is the
touchstone of an award under this statute."); Hudson Motors
845 F. Supp. at 978 (holding that "[w]ithout a demonstration of bad
faith on the part of the attorney in question, sanctions pursuant to
this statute are inappropriate.").
In the present matter, Plaintiffs attorney did submit numerous
post-trial submissions which were later found inadmissible. It is the
opinion of this court, however, that Mr. France intended to bolster his
client's case, not to delay the litigation or harass Defendants. Mr.
France did not act in bad faith when submitting his post-trial exhibits
and motions, and therefore Defendants' motion for sanctions is denied.