Our Hawaiian friend, Robert T. Thomas, brought an Eleventh Circuit Court of Appeals decision to our attention. The case, Chmielewski v The City of St. Pete Beach, was decided on May 16, 2018. Robert writes an excellent blog, inversecondemnation.com. The blog must be considered mandatory reading for anyone interested in eminent domain.
In the Chmielewski case, the Court affirmed a jury verdict in favor of a property owner who asserted that the City’s invitation to the public to access the beach by way of the owner’s privately-owned land was a physical taking. The sign proclaimed “Beach Access.” The City also zoned and mapped Mr. Chmielewski’s land as “recreational open space/public park.” The Court found that inverse condemnation took an easement, not fee title. A result I find curious under the facts.
We are familiar with the issue having recently handled a beach access case for the Town of East Hampton. In Seaview at Amagansett v Trustees and Town of East Hampton, I was successful in having the action dismissed. The lawsuit was brought by various owners who claimed title to the water. The owners had the burden of proof and failed to prove ownership of the beach.
The trial record established 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.
The Trial Court also found that the permissive allowance of the public to enter onto the beach at well-established location established an historic and prescriptive right to use Napeague Beach.
Finally, even though the Plaintiff-Owners claim title by virtue of a Trustees Deed, the Trustees lacked the ability to convey title which excluded the public’s right to use the beach.
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).
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 Trustees 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).
The case is now on appeal to the Appellate Division, Second Department.