They are going to "dig up" the estate owner?? wow, only in NY.
As others said...I think it would depend on whether it is a natural lake or a man made lake. I do a lot of work for the Army Corps of Engineers. At their projects, they generally take up to a certain contour line, although they might go past that line for various reasons (the owner wanted to sell the whole parcel, or they want to make a picnic area, etc). One project in particular I am familiar with has a spillway crest elevation of 1167, but they acquired to the 1190 contour. This is in WV, with very steep valleys. Latest pool elevation is 1094. Here is a plot of this year's pool elevations:
It has never even come close to the spillway.
If you had "lakeside" property, it would go at most to the 1190 contour, and that would be quite far from the water's edge. Here is a typical boundary sheet showing the boundary more or less following the 1190 contour. Note the easement where it dips below 1190, which means the Corps has a flowage easement between the deed line and the 1190 contour.
This is an old project, built in the late 1930's.
The clearly expressed language in the deed is to the "easterly shore of the lake". There is no ambiguity in that statement at all and it is in concert with the presumption of law that the upland includes the appurtenant lake shore and bed (if non-navigable). When the deed expresses a clear intent, then parol evidence cannot overcome the language. There's no sense in asking the attorney or the prior grantees what they intended. Their testimony would be inadmissible.
It seems like we surveyors go to extreme lengths sometimes to create a problem where none exists. You've got a conflict of evidence between the call to the shore (a monument) and a distance recital. The law is clear that the distance yields. Do we have a problem with that? Just because the "parcel closes perfect(ly)" doesn't upset the well-established legal principle.
The only way the parcel would exclude the riparian land is if there is a specific conveyance of that land to another party. Check the assessor's plat for an indication of an adjoining parcel (I presume you've checked the adjoining deeds already). If no intervening property exists between the subject parcel and the lake, then the shore and bed would be included.
There is no room for "feelings" when making boundary determination. I realize that we do have "gut feelings" frequently, but we must be driven by the evidence and the law regarding boundary determinations.
Sounds to me like the NY Court didn't recently change the law, they've simply realized how far they've strayed from the law. Riparian lands are an appurtenance to the upland and cannot be severed without a specific (expressed) intent to do so. Language such as "along the meander line", "along the shore", "to the bank", etc. always includes the appurtenant riparian land ownership, UNLESS there is a specific conveyance which divorces the riparian rights. Always check for the evidence. If you don't find any, the riparian rights are intact.
JBS
I agree with many sentiments in your post. At the same time we are on different pages regarding the conclusion. Further research may prove otherwise but this seems applicable...
Barkus v. Fusco, 199 A.D.2d 450,606 N.Y.S.2d 10 (2d Dep't 1993) (reversing grant of summary judgment on ground that material issues of fact regarding location of shoreline precluded summary determination of ownership of land to center dried up lake bed). "f the description runs the title along dry land such as the bank or the shore, there is an express restriction which excludes or reserves title in the river or pond; whereas, if the boundary touches the water or is along the water or
by the water, and not dry land, the presumption remains that title is carried to the center of the river or pond."
The introduction of terms and qualifiers to a boundary call should not be ignored. Tracking it down is not 'creating a problem where none exists'...
My .02, Tom
Yes, there are a lot of situations that could be argued more than one way. If I recall, the court made an exception in relation to old mills and such, but probably not the way you are thinking. It was something to the effect that the bed was not conveyed even though expressed that way; they were just getting usage rights of the water for a specific purpose and both sides own to the middle. But, each situation is unique.
Well, all they are saying is that a grantee near water expects to be able to use it, so if that's not the case the grantee needs to make it very clear. And we don't really know what various people, in differing localities, at differing times in the past, might have meant when they wrote "shore", "pond", "lake", "bank", etc.. Ambiguity in favor of the grantee. And equity in favor of more people having access to the water rather than a few with a monopoly on its use.
As posted below, NY was not so cut and dried. "to the bank, thence along the bank" would have restricted the grant under the old law, not now. "to the bank, thence along the lake" would not have restricted the grant. If the grant touched the monument (water) it would go to the center. There were conflicting cases on "the shore". Some said that would restrict the grant, others said it carried to low water, others said the language touched the monument (water). The court said enough; if you're near the water, in you go, unless expressly held back. Of course that would actually not apply to meander lines run by the state for canal purposes. In that case you're out of luck and must pay for access to your the states water.
My issue with what the Court did is simple. If an owner relied on the decision and conveyed 'to the shore' with no intent to convey riparian rights, why is the court now changing that conveyance after the fact? They deserve a smack...
It is apparent New York has some quirks (as all of our States do). It is also apparent that the record in this case may not reflect the intent of the parties. I see nothing wrong with chasing it down the normal paths of Title and Survey evidence. The Court itself appears to have introduced the ambiguity to start the journey...
What seller in their right mind would intentionally retain ownership to the bed of the lake without access to it while selling the upland? And, what buyer in their right mind would intentionally purchase the upland without also obtaining the riparian rights appurtenant to the land? What surveyor in their right mind would suggest to a landowner that it's reasonable to do so in the first place?
JBS
This from the one who (rightly) pointed out that feelings have no place in our decisions?
The plain and simple fact is it is common practice in some areas. When we assume based on our limited experience that someone else is ridiculous to do something that is within their right, we head down a bad path. When we assume no owner would do something most consider foolish we are doomed...
The surveyor that started this thread found a red flag in the record. Rather than kick the can down the road he made a few calls and asked a few questions. I say good job...
The seller is in the cemetery from something like 1910. Still owns the bed of the lake. He didn't know he reserved it but what the heck, the deed isn't up the standard. The title nerds say so.
Except he's not. It's a recently created parcel...
The point and problem is that they could have relied on a different decision and intended something else. There is discussion of the split in the lower courts in the more recent decision. Any two surveyors or any two attorneys would give you two different takes on a call to the shore, and all four would probably be wrong. So, there was a problem.
Of course if the grantor is around to testify, and the grantee agrees with the testimony and still owns it and does not have liens on it, then it might only take some reformed language to settle it.
I completely agree. We don't know which (if any) case was relied on. We do know the differing decisions create ambiguity. Discover what you can and memorialize the evidence. Help the owners clean up the record if you can. I think that is professional service.
The decision doesn't involve "feelings." It involves logical deduction and "presumptions" (not assumptions) of law based upon those deductions.
You're faced with two possible interpretations. When applying any legal principle, the application which resolves ambiguity is preferred over one that perpetuates or creates an ambiguity.
JBS
You began your reply with your assumption that owners have no valid reason to separate riparian rights from the upland (common practice in some communities). That is not a presumption. While the majority of States hold they are connected, it not a given by any stretch. Based on the information from the New York Surveyor who chimed in, it went both ways for some time. Even with the Courts appearing to have settled it now, nobody has said anything on what to do with parcels created during the time they were waffling. As I said before, more research...
Again, we agree on many points. Given two options, the one that resolves the ambiguity usually wins out. In this case both options resolve the issue. Either the rights were retained or they were sold. Who prepared the document? Was there an underlying contract with a better intent statement? If so was it recorded? Do both parties recall what they were trying to do? Granted these can be hard questions a hundred years out, but this is a new parcel. Spend an hour and clean it up already.
The second assumption you made relates to the actions of the Surveyor. You assumed he created a problem where none existed. You did so by assuming the question is well settled law across the land, where 5 minutes research showed there was ambiguity in at least the very recent past. Re-read your post. The entire flavor of it is the owners would be dumb and the Surveyor is not in his right mind. Both are statements of how you feel. By the prominence in your writing both assumption and feeling are woven into your decision.
Tom,
Just found this post and had to reply. "Fun one", a simple 0.5 acre lot that should be easy. I guess I'm glad now that I didn't get the job.
Bill