The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge Page 2
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.
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
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.
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.
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.
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 ...