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A preliminary injunction granted pending final hearing of a suit by the United States for a permanent injunction against the closing of the inlet connecting the Bay of Far Rockaway, on the southern coast of Long Island, with the ocean; the principal question at issue being as to whether or not such bay is at the present time navigable water within the jurisdiction of the United States, and it appearing that it has been such navigable water, until recently at least, and that the obstruction, if made, would have a tendency to change its character as such, by preventing the ebb and fiow of the tide therein.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 37, Navigable Waters, 88 61-65, 135-143.

Obstructions to navigation, jurisdiction of federal courts, see note to Bailey v. Mosher, 11 O. C. A. 318.]

In Equity. On motion for preliminary injunction.
William J. Youngs, U. S. Atty.
Hirsh & Rasquin, for defendants.

CHATFIELD, District Judge. Far Rockaway Bay is an ever-varying salt water and tidal indentation in the southern coast line of Long Island. Upon the latest United States government charts it is called the “Bay of Far Rockaway,” separated from the Atlantic Ocean proper by a strip of land, designated “Far Rockaway Beach,” and connecting with the ocean by an inlet called “Little Inlet.” To the eastward on the chart lies a similar strip of shallow salt water, and this, in turn, by various bays, inlets, and larger indentations, connects directly with the broader and much deeper Great South Bay. The entire surface and waters of Long Island are included within the Eastern district of New York. Along the south shore of the Island runs a series of bars and strips of sand, in some places forming a substantial beach, and in others consisting merely of shoal water in front of the main land, at a greater or less distance therefrom. These beaches and bars constantly shift, and, as will be shown later, extreme and frequent as well as violent changes have occurred in the beach in front of the water called the “Bay of Far Rockaway" on many occasions during the past century.

At the present time, the condition of the locality called the “Bay of Far Rockaway” is very different from that shown on the government charts, and not only has the tidal portion been materially reduced in extent, but Little Inlet seems now to have no connection with the Bay of Far Rockaway. The eastern portion of the bay has entirely disappeared, and the mainland and the former beach are directly connected by a dry section of sand. A new inlet, smaller in many ways than the Little Inlet shown upon the charts, has been forced through the beach, at one point and then at another, with a general tendency to work westerly, thereby shortening the extent of the Bay of Far Rockaway, and increasing the amount of the solid mainland immediately east of the inlet. As shown by the moving papers herein, some seven bridges on trestles, at heights varying from five to six feet above the level of high water, have been built across the water now comprising this bay. These bridges have no draws, and no permit has been obtained from the War Department for their erection, with the exception of one, the second bridge counting from the east. For this bridge a permit was granted by the War Department, on July 16, 1895, allowing the erection of a trestle with a draw. The statement upon which the application for this permit was made is as follows:

"To the Honorable Secretary of War, Washington, D. C.-Dear Sir: The Ocean Causeway Company propose to build a causeway and bridge across Far Rockaway Bay to connect Hicks Beach, Long Island, with Shelter Island, New York, for the purpose of giving to the residents of that locality access to said island with vehicles. The depth of water in the channel way where it is proposed to erect this bridge varies from one to four feet at mean low water, and the proposed draw span in the new bridge of at least thirty-five feet in the clear, will make navigation in the neighboring waters unobstructed. We therefore respectfully request that you will grant us authority to build said bridge and causeway subject to any conditions you may deem proper to impose. Accompanying this is a plan of the bridge and drawings showing its location. Very respectfully,

Geo. C. Rand, Prest.,

"107 Wall St., New York." It further appears from the moving papers (affidavit of James Stillwaggon, verified March 18, 1907) that in 1903 this draw was closed and permanently fastened, during the course of rebuilding by the defendant corporation.

Through the access gained by these bridges a substantial use of the beach for bathing purposes has been made possible, and large bath houses have been erected. Recently the defendant the Banister Realty Company applied to the War Department for a permit to pump sand from the Atlantic Ocean, for the purpose of filling in to the north and east of the Bay of Far Rockaway, on certain territory owned by the company, and such permit was granted in the following language:

“Referring to your application of March 31st, last, for permission to dredge sand from the Atlantic Ocean, at Far Rockaway, Long Island, N. Y., also to fill in land of the Banister Realty Company at that place, the area to be filled in being shown in red on blue print submitted, I beg to inform you that the War Department will interpose no objection to the proposed work, it being understood that there shall be no unreasonable interference with navigation thereby, that suitable provision shall be made to prevent the escape of the dredged material into Far Rockaway Bay and Mott Creek, and that this action does not authorize any injury to private property or invasion of private rights nor any infringement of local and state laws or regulations. "Very respectfully,

Robert Shaw Oliver,

"Assistant Secretary of War." A pumping station was erected east of the location of the present inlet, outside of low-water mark, and the sand was piped over one of the bridges above mentioned and deposited on the mainland. The action of the storms, forcing the inlet gradually westward, undermined the pumping plant, and pierced the beach at a point just west of the pumping station, and almost in the exact spot where, some years ago, two bulkheads were constructed for the purpose of protecting the beach from the encroachments of the ocean. Part of the bulkheads were washed away, and the present inlet formed. This the defendants claim is in the neighborhood of 30 feet wide and 1 foot deep at low water, and 85 feet wide and 2 feet deep at high water, on an average, and is plainly shown on the photograph, Defendants' Exhibit M, March 16, 1907; the bath houses shown in this picture being to the west of the inlet. The piercing of the inlet at the present location occurred about January, 1907, and the defendant company proceeded to drive a line of piling, and to reinforce the same by bags of sand, between the two lines of old bulkhead and directly across the inlet. At the time of driving the piling, this inlet was the only place in which the tide ran in and out to the section called the “Bay of Far Rockaway,” and, as is shown by the chart submitted by the defendants, the water in the bay at high tide is never as high as in the ocean; the inlet not now being of sufficient capacity to allow the bay to fill up to the ocean level during the period of any flood tide.

The present action was brought by the United States to effect the removal of this piling, and the plaintiff also obtained an order to show cause why an injunction pendente lite should not issue.

At the various points at which cross-sections have been taken, as shown by the defendants' map No. 1,875, surveyed March 20, 1907, this body of water called the “Bay of Far Rockaway” is from 1 to 2 feet deep in the sections measured. As shown by the affidavits, the present bay is not only growing shallower, but, from the encroachments of the beach at the easterly end, and the building up of improvements on the mainland at the westerly end, it is filling in rapidly and becoming smaller in extent. The bridges above referred to are shown by photographs introduced by the defendants. A small sail boat, of a size suitable substantially for pleasure only, and almost within the class of a rowboat or skiff, is pictured near one of the bridges, resting upon the mud. A man beside the boat is in water not much above his ankles, indicating the depth of the water at the point where one of the largest bridges crosses.

A further examination of the affidavits submitted on behalf of the defendants, and of the charts accompanying these affidavits, shows that a record exists from as far back as 1802, when the beach as a whole, for a considerable distance east and west of the locality under discussion, extended in an unbroken stretch far to the south (that is, out in the ocean) from the present low-water mark. The first opening in this beach seems to have been Hog Island Inlet, which enters what is called "Broad Channel” and several bays forming the westernmost of the indentations directly connecting with Great South Bay. In 1836 the coast line had not changed, unless to work inland to a slight extent; but in 1862, 1863, and 1864 this solid beach was entirely washed out, and apparently the different portions of tidal water of Far Rockaway Bay date from that time. The various bars and beaches between the Bay of Far Rockaway and the Atlantic Ocean have been built up, and have shifted and changed continuously down to the present time. At all times, however, since 1864, there has existed some beach or bar between the Bay of Far Rockaway and the Atlantic Ocean, and the limits of the bay have been more or less distinct. In 1879 the beach itself was far to the south of where it is now and much wider in extent. The bay,

The bay, also, was then several times larger than at present. Hog Island Inlet, of which mention has been made, has shifted to the west and to the east of where it was at the beginning of these records, but is now not far from the original locality. In 1896, and again in 1900, the shifting of the beach and the cutting of a new inlet began to narrow the bay, threatening its complete de

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struction, unless the filling in from the northward and eastward is halted, or unless the mainland is further washed out by the action of the ocean.

At various points to the west, the north, and the east of the present bay, improvements in the way of buildings, roads, and docks have not only protected the mainland, but caused the deposit of sand and a gradual encroachment upon the waters of the bay from filling in by the tides. The effect also of the building of the bridges and of the structures erected upon the beach has been to interfere with the force of the tides and of storms and to increase the rate of filling up from natural causes. It may be questioned whether, if left alone, the bay would not soon become a mere channel, or disappear entirely, if no extraordinarily severe storm or attack by the ocean occurs, and under this natural process the navigable character of this, as of any portion of tidal water, may be entirely lost. When so lost, the land would come under the exclusive jurisdiction of the state of New York.

Many of the allegations of the defendants as to the condition and capacity of the waters of the Bay of Far Rockaway are controverted by the affidavits upon which the original order to show cause was granted and those filed on behalf of the United States at the hearing of this motion.

The affidavit of Harry T. Kerr, verified March 15, 1907, shows that between his first examination and the 9th day of March, 1907, the line of piling had been completely extended across the inlet in question, and that bags of sand had been placed along the piles, in order to facilitate the deposit of sand by the ocean. Attached to Mr. Kerr's affidavit is a blue print sketch outlining the position of the inlet and the trestle and pump for the deposit of sand upon the mainland by the Banister Company.

Cornelius D. Curnen, in an affidavit verified March 2, 1907, states that Shelter Island Inlet is 200 feet wide and contains 6 feet of water at full tide; that during the past year motor boats and sail boats have been constantly using this inlet in going to and from the bay and ocean; that a large pile driver went in and out in the spring of 1906; that a large amount of sewage empties into the bay; that the bay extends over some 80 or 100 acres of land and contains fish.

Edward Roche, in an affidavit verified March 2, 1907, states that the inlet has been used by him frequently for ingress and egress by means of a launch during the past year; that the inlet is about 200 feet wide at high tide, and about 40 feet wide at low tide; and that there are at least 6 feet of water at high tide. Mr. Roche further swears that the erection of the piling has interfered with navigation; that Far Rockaway Bay has been within his knowledge a navigable body of water for vessels of pleasure and commerce for the last 40 years.

Stephen Stillwaggon, in an affidavit verified March 5, 1907, states that he has used the inlet for fishing, going in and out with a power boat of three feet draft; that he has been unable to do so since the driving of the piles by the defendant.

Elias H. Abrams makes an affidavit as to fishing and using a motor boat within the past year, and to using the inlet for ingress and egress

with the motor boat in the fishing business. Stephen Ambrose and William H. Stillwaggon make identical affidavit with Abrams.

Lawrence P. Boyle verified March 16, 1907, an affidavit stating that he found two feet or more of water March 14, 1907, at low tide, at the mouth of the inlet south of the line of the defendants' piling.

The defendants admit that the pile driver above mentioned was taken through the inlet, but allege that it had to be dragged through.

The photographs introduced in evidence by the government show various views of the locality, and the blue print survey shows that, the water being shallow, there is a considerable difference in the area covered by the bay at low and at high tide.

The general situation outlined in the affidavits of both sides to this question is similar to that existing at many other points along the south shore of Long Island. There are numerous small arms of the sea and streams having access directly to the Atlantic Ocean capable of use by pleasure craft and smaller boats for commercial purposes at high tide. Some of these waters at low tide are inaccessible to any boat except a skiff, and the tide ebbs and flows in most of them to a point far beyond where any use can be made of the outlet to the main ocean either for pleasure or business. The physical condition of these various localities, generally, brings these waters within the jurisdiction of the United States. They are geographically a part of the state of New York; but, as to some phases of the federal jurisdiction, discretion is vested by Congress in the Secretary of War and in the War Department of the United States government with relation to the use of the waters by individuals.

By chapter 907 of the Laws of 1890, Congress forbade the construction of any bridges or other works over or in the navigable waters of the United States, which would obstruct or impair the navigation or commercial use of such waters, or would alter or modify the channels of said navigable waters, without first obtaining the approval of the Secretary of War. 26 Stat. 453, 454. By section 10 of the same act, any person or corporation guilty of creating or continuing any such unlawful obstruction, or violating the provisions of the act, was declared to be guilty of a misdemeanor, and, on conviction, punished by a fine or imprisonment. This section (section 10, 26 Stat. 453) further provides that:

"The creating or continuing of any unlawful obstruction in this act mentioned may be prevented and such obstruction may be caused to be removed by the injunction of any Circuit Court exercising jurisdiction in any district in which such obstruction may be threatened or may exist; and proper proceedings in equity to this end may be instituted under the direction of the Attorney General of the United States."

This law was amended and re-enacted by chapter 158, Laws 1892 (27 Stat. 88–116 [U. S. Comp. St. 1901, p. 3527]), and again by Laws 1899, c. 425 (30 Stat. 1151 (U. S. Comp. St. 1901, p. 3540]), and further amended by the Act of February 20, 1900, c. 23 (31 Stat. 31).

Jurisdiction over the navigable waters of the United States is given to the United States government by certain provisions of the Constitution, infra. The different states thereby conferred admiralty,

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