Brooklyn Daily Eagle 12-21-1903
W. E. ROOSEVELT'S DOCK A GONE OF COHOfi Oyster Bay Officials Seek to Have Wharf Declared an Obstruction Obstruction to Highway. ANCIENT RECORDS IN EVIDENCE. Complainant a Cousin of the President. Case Involves Right of Public to Oyster Oyster Bay Harbor Shore Front. (Spcoial to the Eagle.) Patchoguc, L. I., December 21 An Interesting Interesting case, Involving the rights ot tbe public public to the shore front along Oyster Bay Harbor, at Oyster Bay, came before Justice Wllmot M. Smith in Special Term ot the Supreme Court here last Saturday. The case revealed a peculiar condition of affairs, the contention of the town officials, who are defendant parties to the action, being that the strip of beach, which is at times from six to thirteen feet under water, Is a public highway regularlv laid out 212 years ago. Tbe complaining party la W. Emlen Roosevelt, a cousin and next door neighbor to President Roosevelt, who seeks to permanently permanently enjoin the Highway Commissioners Commissioners of the town of Oyster Bay from taking away his dock and revoking his franchise therefor In front of bis premises on Cove Neck. From the evidence adduced it was shown that the Town Board had last year granted Mr. Roosevelt p rmission to erect a dock in front of his premises, subject to whatever rights tho public might have along the shore front, and that in June last he had received notice from the Highway Commissioners to remove the dock on the ground that It was obstructing a highway. The notice from the Highway Commissioners was to the effect that unless the dock was removed by Mr. Roosevelt they would undertake to remove remove it. The dock In question is about 200 feot long, and is built on permanent foundations, but so arranged that, with the exception of the foundations, it can be taken up in winter, winter, which has been done since last fall. Rather than have the dock forcibly reinovod Mr. Koosevolt, Immediately after the receipt of the notice from the Highway Commissioners, Commissioners, obtained a temporary injunction re straining the commissioners, and It was to make this injunction permanent that brought the matter to Patchogue last Saturday. Saturday. The contention of Counselor George B. Stoddart, who appeared for the Highway Commissioners, is that tbe town had no right to grant the privilege for a dock obstructing obstructing a public highway, he claiming that there is a public highway along the beach on Cove Neck, passing in front of the Roosevelt Roosevelt property. Counselor Stoddart further claims that whether or not the Town Board had a right to grant the privilege to erect a dock there the structure is a nuisance, and pot built in accordance with the franchise. The action of tho highway commissioners In ordering the removal of Mr. Roosevelt's dock Is based on the decision handed down In the case of Frederic R. Coudert, who sought to restrain the commissioners In similar proceedings concerning the dock in front of his property, and which Is next but one to the Roosevelt property. In the Coudert case the highway commissioners won, their contention that there Is a highway highway along that shore front being practically sustained. The present case Is somewhat similar to the Coudert case. Congressman TownBend Scudder, who appeared appeared with Lawyer Kellogg for Mr. Roosevelt, Roosevelt, endeavored to prove that the existence of a highway along the shore front Is a myth, and that the town records. If properly followed, will Bhow the existence of two roads parallel to each other, at a distance apart varying from a few feet to 300 feet. In support of his contention that the so-called so-called so-called "highway" on the beach bad not been used as such, Congressman Scudder called as witnesses a number of former highway commissioners of tbe town, among whom was Edgar Davis, who was commissioner In 1864, "Uncle Jake" Fitting, who served as commissioner commissioner twenty years ago; Samuel D. Fleet, Isaac W. Valentine, former Town Collector Collector Jacob Bumstead, Supervisor William H. Jones, who is a former highway commissioner commissioner of Oyster Bay, all of whom testified testified to never having worked the alleged road and most of whom had never heard of the claim ot the existence of a road along tho beach. Captain Elbert Velsor, a resident resident ot Oyster Bay for the past sixty-five sixty-five sixty-five years, said that he had navigated around Cove Neck, and that the only driving he had seen along the disputed section of beach was the same as he had seen along other seo-tions seo-tions seo-tions of beach In that vicinity, namoly, clammers driving to tho shore to follow their vocation. Theodore F. Swan, one of Mr. Roosevelt's neighbors, testified that the average tldo covering the beach and so-called so-called so-called highway was seven feet and that it sometimes rises to thirteen feet. In rebuttal of this testimony Lawyer Stoddard put Town Clerk James Long on the stand, who brought tho original Andros patent and other town records of 1G99 and 1821 to prove the laying out ot the highway aloitr the beach. Congressman Scudder objected objected to the record of 1S21 on the ground that the action of the highway commissioners commissioners at that dato was not based on statutory provisions, but was an effort to Interpret the action of their predecessors In 1S91. Mr. Scudder objected to the acceptance of the record of 16!U on the ground that It Is difficult to understand, because of part nf the wording being obliterated, but the court agreed to decide those portions of the record counsel could not agree upon. William H. Seaman, a civil engineer of Oyster Bay, was sworn by Congressman Scudder to show how tho highway commissioners from 1601 down to 1S87 had changed the so-called so-called so-called road to "suit Iho circumstances." Counselor Stoddart was used as a witness for Mr. Roosevelt by the Congressman, and under exnmlnntlon admitted that although he had lived In that vicinity for many years he had heard' of the claim to the existence of the so-called so-called so-called road only ten years bro, and then had obtained his Information from soma old residents, his knowledge of the 11, record dating from the Coudert ease. Highway Commissioners 1'nderhlll and Bayles appeared as witnesses for their own case. They claimed the dock la a nuisance and that It should be removed. I'nder cross-examination cross-examination cross-examination they admitted that, no money had been spent on the so-cnlled so-cnlled so-cnlled highway, and that there aro no physical evidences of a road there. John D. Hicks nf Jericho, a "0-yenr-old "0-yenr-old "0-yenr-old "0-yenr-old "0-yenr-old lea captain, said he had known of the existence existence of the road thirty-five thirty-five thirty-five years ago and had traveled over It with vehicles. Congressman Scudder had some fun with James J. Doly of Cold Spring Unrhor, who wae witness for Ihe highway commissioners. The witness gave his age as 67 years, and said he had known of the alleged road along the shore since his boyhood days. His grandfather, he said, was a highway commissioner commissioner of the town, and was Interested, tie tried to prove that he had driven around the entire shore front of Cove Neck, but which. It was shown later, was a physical Impossibility becnuse of a couple of creeks and marsh land along tho route. The witness witness said It was fully twenty years since he hsd made the memorable trip, but his memory whs vague as to the kind of vehicle he used In making the circuit. Congressman Scudder modestly Inquired If his "carriage" were fitted with a- a- centerboard and If he had ever taken out a patent on the "carriage." "carriage." The case will be continued at a date to be agreed upon by counsel.