Second Department, May, 1920. [Vol. 192. along plaintiff's upland. The defendant town does not question the right to maintain this wall. In the month of May, 1913, before the adverse decision of the appeal, a hydraulic dredge working eastward of this wreck took up sand and material which by its pipes were deposited to the westward. This, aided by the natural wash along the shore, which the wreck tended to arrest, formed a covering over shore boulders and shingle. It raised this foreshore in a sloping embankment with its front about a foot above high water. Such newly-made land projected out into the harbor in a curved salient, with this hulk near its apex, the fill receding in both directions to the former shore lines. After the Court of Appeals had made nugatory the grant which the State of New York had undertaken to make plaintiff, he offered, by letter and otherwise, to restore the foreshore and to remove this fill therefrom, and to undo his action by putting the shore back in the condition it had been before any changes had been made therein, which proposal the town declined. In June, 1916, the town took possession of this filled-in land and employed defendant Kunz to build thereon a structure to contain thirty-three public bathhouses on an area of about fifty feet by ten or fifteen feet. Plaintiff then brought this second suit for an injunction against erecting such buildings or other structures. His complaint repeated the offer to restore the foreshore to its original condition. He asked that plaintiff be adjudged his riparian rights in such lands. After a trial, it was held that such filling in of the foreshore was a trespass; that the title of the town derived from the Andros charter authorized it to put up such projected bathhouses, and that such filled-in land could be devoted to a use for public recreation. (104 Misc. Rep. 445.) From the judgment of dismissal plaintiff took this appeal. Frederic R. Coudert [Rowland Miles and Wilmot T. Cox with him on the brief], for the appellant. Henry A. Uterhart, for the respondents. App. Div.] PUTNAM, J.: Second Department, May, 1920. The prior decision (Tiffany v. Town of Oyster Bay, 209 N. Y. 1) held that the prior Andros patent took away from the State the power to grant to upland owners on this harbor any rights in lands below high-water mark. But it did not settle what were the town's rights and powers in the soil beneath Cold Spring Harbor. Such town title is subject to public rights of navigation and to the rights of access by riparian owners. (Town of Brookhaven v. Smith, 188 N. Y. 74, 78.) As patentee of the grant including this harbor, has the town the right to erect bathhouses upon this filled-in foreshore? Can it thus use the raised beach to the prejudice of the upland owner? The town's rights were public in this estuary; such, for example, as ownership and regulation over oyster or other shell fish beds (Rogers v. Jones, 1 Wend. 237), with a general authority to preserve the harbor facilities, including the power (under the Federal government) to deepen, improve and protect them. But, except for some aid to commerce, fishing or navigation, I find no power to fill in the harbor, or to maintain parks or to establish recreation grounds upon lands reclaimed from lands under the waters of this harbor. Here the town proposes to erect an opus manufactum, such as a permanent building, on this outer shore fronting plaintiff's uplands. Whether the extending shore surface be from gradual accretion, as alluvion, or by more violent means, there is no authority for such a building in front of a littoral owner, to cover and encroach upon made ground where formerly were public rights to navigate at high water, and at low water a right or servitude for a highway for public passage. It is not found that this fill has obstructed the public right of passage along this shore. In discussing public rights on the sea shore, an acknowledged authority has declared: "Quays, wharfs, and embankments in general, below high-water mark, convert that which was shore into terra firma, being, in fact, so much land gained from the sea, and therefore no longer shore. If any ground be left on the other side, towards the sea, that may be shore, and subject as before; but no one can suppose that an embankment by which the soil is rescued from the sea by the owner of the APP. DIV.- VOL. CXCII. 9 Second Department, May, 1920. [Vol. 192. shore, would be abatable as a nuisance, in favor of bathing or fishing, whilst the shore, beyond and around, is still open to the public, and these rights may be enjoyed as easily as before. Nor was it ever contended that the supposed owner of the soil of the shore has not a right to convert it into terra firma, at his own risk and expense, unless in so doing he created a public or local nuisance." (Hall, on "Rights of the Crown in the Sea Shores of the Realm" [2d ed. 1875], 179, 180.) Plaintiff's action in May, 1913, in placing material along the foreshore was in no sense a trespass. He exercised a legal right, subject, possibly, on reversal of his judgment, to the obligation to make restitution. (Manning's Case, 8 Coke, 94; Freem. Judg. [4th ed.] § 482.) Indeed, the old form of a decree of reversal directed "that the defendant be restored to all things which he has lost on occasion of the judgment aforesaid." (Haebler v. Myers, 132 N. Y. 363, 366.) This duty plaintiff recognized in his prompt offer to restore the status quo. But even if the solemn grant from the State as sovereign, and its confirmation by a divided court, be ignored, and plaintiff's act in improving his front be tested by the final outcome of his litigation, it was not unlike the instance of a wharf owner extending his structure beyond harbor lines. The part going beyond the limits could be removed as a nuisance (People v. Vanderbilt, 38 Barb. 282; affd., 28 N. Y. 396), but not used for municipal purposes. In such circumstances lands in front of a riparian owner are not building sites save for structures in aid of navigation; and no supervening right over any part of such place can be exercised or maintained to the prejudice of the riparian owner. (Bowman v. Wathen, 2 McLean, 376; Matter of City of Buffalo, 206 N. Y. 319, 329; Morgan v. Livingston, 6 Mart. [La.] 228.) I cannot agree that if plaintiff still has a means of access over "a considerable portion of his original shore line," the town could take away such approach over his remaining frontage. Riparian rights include accretions to the shore, so that the boundary may go outwards with the extension of the shore line. (Mulry v. Norton, 100 N. Y. 424.) The town itself cannot lawfully interfere with, much less obstruct by buildings, public rights of passage along such App. Div.] Second Department, May, 1920. foreshore. At one stage of the tide such buildings are over lands that have been in the path of navigation of small vessels. At the ebb, such structures violate the jus publicum, and could be abated as a purpresture or a nuisance. So they are against public rights as well as in derogation of those of the littoral owner. (Johnson v. May, 189 App. Div. 196, 203.) A public bathhouse incidentally raises another question. The public have no right to pass over the foreshore in England to bathe in the sea. (Brinckman v. Matley, L. R. [1904] 2 Ch. 313.) The public right to bathe, save at designated places, is doubtful in this country. (Hunt v. Graham, 15 Penn. Super. Ct. Rep. 42.) As land held by towns under Colonial patent is proprietary, so that its disposition and control do not require legislative sanction (Town of Islip v. Estates of Havemeyer Point, 224 N. Y. 449), special scrutiny should be given to such rights over bays, harbors and waters, to see that, by novel assertion thereof, the rights of upland owners be not sacrified. I advise that the judgment be reversed, and that defendants be restrained from erecting bathhouses, or other permanent structures, upon this filled-in land; with, however, a provision that the officials of Oyster Bay, notwithstanding their former refusal, may within thirty days elect to have this fill removed, and the shore restored at the plaintiff's expense; that the finding of fact numbered 2 be modified by striking out the words "in front of his entire upland;" findings of fact numbered 8, 9, 10 and 13, and the conclusions of law numbered 3, 4, 5, 7 and 8 be severally reversed and rescinded. This reversal to be without costs of this appeal. MILLS, RICH and KELLY, JJ., concur; JAYCOx, J., reads to affirm. JAYCOX, J. (dissenting): The questions involved in this case necessarily are only those arising between the plaintiff, as an upland owner, and the town of Oyster Bay, as the owner of the land under water in Cold Spring Harbor adjoining the plaintiff's upland. The question of the rights of navigation or as to whether the land which the plaintiff seeks to remove constitute a purpresture Second Department, May, 1920. [Vol. 192. or not are not involved in this action. Those questions can be determined only in an action instituted by the sovereign power having control of navigation. The right of the town to establish a park or to build bathhouses for the accommodation of the public cannot be determined in this action, as such an action is brought by a taxpayer against a public officer. (Code Civ. Proc. § 1925; Gen. Mun. Law, § 51.) Any discussion, therefore, of questions which might be involved in actions of that character is not germane to the questions here presented. The plaintiff is the owner of a large tract of upland on the westerly side of Cold Spring Harbor at or near the head of the harbor. He applied to the Commissioners of the Land Office of the State of New York for a grant of land under the waters of said harbor in front of his upland. This application was opposed by the town but was granted by the said Commissioners and a grant was made to the plaintiff on the 30th of March, 1905, of something over twenty-one acres of land under the waters of said harbor. As soon as the plaintiff started to make improvements upon the land thus granted, he was notified by the authorities of the town of Oyster Bay that it claimed title to the lands under the water of said harbor, and the plaintiff having refused to remove the structures placed upon the premises by him, the town commenced to remove the same. Thereafter, and on or about April 25, 1908, the plaintiff commenced an action in the Supreme Court against the town of Oyster Bay and the then highway commissioner of the town, seeking to restrain the defendants from removing or attempting to remove any jetty, wall or structure erected by the plaintiff on the premises below high-water mark. This action was brought to trial at Special Term and a decision rendered in favor of the plaintiff granting the injunction as prayed for. The judgment was entered January 7, 1909. An appeal was then taken to the Appellate Division, where the judgment was affirmed by a divided court (141 App. Div. 720). Upon an appeal by the defendants to the Court of Appeals the judgment in favor of the plaintiff was reversed (209 N. Y. 1). Upon a new trial the complaint was dismissed upon the merits by a judgment entered February 7, 1914. In the meantime, and while the |