A Funny Thing Happened on the Way to the Beach.

A long simmering dispute regarding the public’s use of the beach at Napeague, East Hampton culminated in a trial at Riverhead.  The homeowners landward of the beach brought suit against the Town of East Hampton and the Trustees of the Freeholders and Commonalty of East Hampton claiming ownership of the beach.

Following a multi-day trial, the Court ruled in favor of the Town and Trustees and dismissed the action.  On appeal, the Appellate Division, Second Department reversed. 191 AD3d 77 (2021).

But the proceedings are far from over since the Town and Trustees have vowed to bring the matter to the Court of Appeals.

The beaches and land adjoining are under the jurisdiction of the Trustees created in the 17th Century to hold the land in trust for the public.  On March 15, 1882, the Trustees sold a portion of its land to Arthur W. Benson.  A key point in the issue is, could the Trustees convey title to the beach?  The following is taken from the Town’s motion for leave to reargue or permission for leave to appeal to the Court of Appeals.

The Trustees Could Not Convey Title Which Excluded the Public’s Right to Use the Beach

The use of the beach was historic from the earliest settlement of East Hampton.  The use of the beach pre-existed the conveyance by the Trustees on March 15, 1882 to Arthur W. Benson.  Plaintiffs allege their title to the subject beach by this deed.

The Trustees rights to hold or sell land in East Hampton derive from the Dongan Patent of 1686, a colonial document which ratified a prior 1666 grant of lands in East Hampton to the Trustees of the Freeholders and Commonalty of the Town of East Hampton in a trust and for the use of the inhabitants of the Town mentioned.  Trustees of Freeholders & Commonalty v Kirk, 68 NY 459 (1877).

The Benson Deed did not convey full title to the property over which Plaintiffs claim ownership.

The Deed’s language evidences a clear intent to convey less than all the interest in the land that the grantor had.  The exception clause in the Benson Deed reads:

[A]nd also except and reserved to the inhabitants of the Town of East Hampton the right to land fish, boats, and netts (sic) to spread the netts (sic) in the adjacent sands and care for the fish and material as has been customary heretofore on the south shore of the town lying westerly of these conveyed premises.  (R. 1691).

The Dongan Patent to the Trustees was to hold land in trust.

In Smith v State of New York, 153 AD2d 737 (2d Dept. 1989), this Court held, in very similar factual circumstances, that while a conveyance might have been made of land and beaches around the City of Glen Cove, any such conveyance must comport with the best public use and not be injurious to the public good.

In Marba Sea Bay Corp. v Clinton Street Realty Corp, 272 NY 292 (1936) rehearing den. 278 NY 485 (1938) it was held that the grant of the foreshore to a private person is not recognizable by the law.  The Court held, “the title which the State holds and the power of disposition is an incident and part of its sovereignty that cannot be surrendered, alienated or delegated, except for some public purpose, or some reasonable use which can fairly be said to be for the public benefit.”  Id. at 296.  Also see Matthews v Bay Head Improvement Ass’n, 95 NJ 306 (1984), which extended the application of the public trust doctrine from publicly owned to privately owned beaches in New Jersey.

Thus, under the well-established law, the Trustees could not have conveyed exclusive title to the subject property. It is clear that even if the Trustees could convey title to the beach landward of the mean highwater line, it could not exclude the public from this area used for fishing and other recreational activities.  And, by excepting the public’s right to use the beach in the Benson Deed, it preserved the public’s right to use the beach.  Trustees of Southampton v Betts, 163 NY 454, 460 (1900); Dolphin Lane Associates Ltd. v Town of Southampton, 72 Misc2d 868 (Suff. Ct. 1971), aff’d 43 AD2d 727 (2d Dept 1973), mod. 37 NY2d 292 (1975).

Clearly, it was the intention of the Trustees, as set forth in the exception to the deed, to provide privileges and an easement to be enjoyed by the public in the land conveyed.  This exception was required by the public trust doctrine.

An additional argument advanced is that the Plaintiff homeowners did not own the beach.

The trial record establishes that Appellants did not own the beach to the exclusion of others.  The evidence indicates that all of the Appellants took title by virtue of recorded plats which specifically disclaimed ownership of the beach.  This is of significant legal importance since the Court of Appeals has held that the term conveyance includes every written recorded instrument including filed subdivision plats which contain express disclaimers of title.  O’Mara v Town of Wappinger, 9 NY3d 303, at footnote 6 (2007).  Notes on filed plats are as much a part of a property’s chain of title as matters contained in recorded deeds, easements, covenants, and the like.  Also see Underhill Ave. Corp. v Village-on-Hudson, 82 AD3d 963 (2d Dept 2011).

Finally, it was argued that the public had prescriptive rights to use the beach as they have for over 60 years by virtue of adverse possession.

Posted in Adverse Possession, Public Trust, Title to Beach
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