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Barges
Below High Water Mark Do Not Infringe on Property Rights
Romeo v. Sherry,
308 F. Supp. 2d 128 (E.D. N.Y. 2004).
Lauren
Cozzolino, 2nd Year Law Student at University of Connecticut School
of Law
The United States
District Court for the Eastern District of New York found that the State
of New York owns the land between the high and low water marks (the
“foreshore”) unless specifically granted by the state. The
court also found that waterfront property owners (riparian owners) only
have a right to reasonable access to the adjacent navigable waterway.
Background
Plaintiff Joseph Romeo owns waterfront property in Tottenville, New
York along the Arthur Kill. Arthur Kill is a navigable waterway that
divides Staten Island, New York from New Jersey. When Romeo purchased
the waterfront property in August of 1994, fourteen steel and wooden
barges lay offshore in plain sight. All but five of these barges were
removed by their owners at Romeo’s request. The remaining barges
lay on the foreshore, or the land between the high and low water marks.
Romeo contends that these barges infringed on his riparian right of
access to the waterway. He had wanted to use the properties for the
development of a myriad of businesses including a wedding chapel, photography
studio, restaurant and a community center. He argued to the court that
he was unable to use the land as he had hoped because of the presence
of the barges. Romeo also alleged that he had ownership of the foreshore
and that the presence of the barges constituted trespass and nuisance.
Riparian Rights
Under New York law,
a riparian owner’s right of access to navigable waters is not absolute.
Romeo argued that any interference, however slight, is an interference
with his riparian rights. The court disagreed, pointing out that “well
over a century of common law adjudication has established the riparian
owner’s right to reasonable access.”1 “Reasonable
access” is defined on a case-by-case basis. The court stated that
the presence of the abandoned barges offshore Romeo’s property
did not prevent the plaintiff from accessing Arthur Kill because the
barges only blocked 25 percent of the plaintiff’s access to the
navigable water. The court also highlighted the fact that Romeo did
not present any evidence that he had ever lived at the waterfront property
in question or that he had ever attempted to launch or land a watercraft.
After weighing these factors, the court held that the presence of abandoned
and sunken barges on the foreshore did not violate the owner’s
riparian rights because riparian owners only have the right to reasonable
access to navigable waters.
Ownership
of the Foreshore
In addition to claiming that his riparian rights were interfered with,
Romeo filed an action for trespass and nuisance. In order to successfully
bring these claims, Romeo had to prove that he had ownership rights
to the land where the barges rested. Citing the United States Supreme
Court, the New York district court pointed out that “unless specifically
granted, States are the owners of all lands subject to the ebb and flow
of the tide.”2 Romeo admitted he had no grant
from the State but contended that he had a right to the foreshore that
derived from a colonial grant that was transferred to a previous owner
of the waterfront property. This colonial grant was given to Captain
Christopher Billopp in 1687 by English Royal Governor James Dongan.
The grant conveyed much of the southern portion of Staten Island and
stated that it included land “unto [the] low water marke.”3
The court was not persuaded by Romeo’s argument that he had a right
to the foreshore based on this grant. This was due in part to the fact
that Captain Billopp was convicted of treason in 1779 for fighting with
the British against American colonists. He was banished from the State
of New York and his property was forfeited to the people of New York.
In 1784, New York State Commissioners sold the Billopp property to Thomas
McFarren. McFarren’s deed did not grant him land below the high-water
mark. More importantly, New York courts have held that large grants
of seacoast land granted for private purposes violate the public trust
doctrine.4 Therefore, Romeo could not rely on the Billopp
grant for ownership of the foreshore.
Romeo made an additional
claim that he obtained title to the foreshore through adverse possession.
Romeo was unsuccessful in this attempt because “navigable waterways
are inalienable except by grant.”5 The court found
for the defendants because Romeo was unable to prove that he owned the
foreshore. In short, the court reasoned that without a valid grant the
State owns the foreshore.
Conclusion
The United States District Court for the Eastern District of New York
concluded that under New York law, a riparian owner only has the right
to reasonable access of adjacent navigable waters. The presence of the
abandoned and sunken barges on the foreshore did not violate Joseph
Romeo’s reasonable access. In addition, the court found that the
abandoned and sunken barges on the foreshore did not constitute trespass
or nuisance because Romeo did not own the foreshore.
Endnotes
1. Romeo v. Sherry, 308 F. Supp. 2d 128, 144
(E.D.N.Y. 2004).
2. Id. at 141.
3. Id. at 135.
4. Id. at 142, citing Marba Sea Bay Corp.
v. Clinton St. Realty Corp., 272 N.Y. 292, 296 (1936).
5. Id. at 147.
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