Lot 9 and Lands Underwater

It looks to me as though the intent was to reserve the under water lands. Did you grantor search the developer to see if they did convey the land under water at any time before or after selling the lots? Since the "Beach Lot" was intended to be used in common by the lot owners, I wonder if a lot owner's association was established to manage the common land? That would be the most likely party to be granted the under water lands.

Peter Lothian - MA ME, post: 422246, member: 4512 wrote: It looks to me as though the intent was to reserve the under water lands. Did you grantor search the developer to see if they did convey the land under water at any time before or after selling the lots? Since the "Beach Lot" was intended to be used in common by the lot owners, I wonder if a lot owner's association was established to manage the common land? That would be the most likely party to be granted the under water lands.

Thank you. I had never thought of this. I will try to find if a deed was ever created for the ownership of the "beach area". It is possible. If so I will see if it contains anything to do with the lands underwater.

I think that you've stumbled into a question that's quite a bit more complicated than you might think. Being a tidal waterway, the sound is considered to be navigable for title purposes, even if not actually physically navigable (Phillips Petroleum v. Mississippi, 484 US 469, 1988). That means that the tidelands and submerged lands under the sound are or were sovereign land of the state. It's that land title designation that is at the root of making the question a complex one.

Sovereign lands are those owned by the State in trust for the public. States may not dispose of sovereign lands in a manner that alienates the public's ability to use those lands and the waters above them (Illinois Central Railroad v Illinois, 146 US 387, 1892). However, they may dispose of sovereign lands as long as the public's right and ability to use the lands for the uses associated with the Public Trust Doctrine are not unduly impaired (Shively v. Bowlby, 152 US 1, 1894).

The Public Trust is the public's right to use navigable waters and the lands beneath them. The traditional uses had always been travel, commerce, and fishing, but have expanded to other things like scientific study, habitat restoration, and a few other activities seen to be to the benefit of the public as a whole and which facilitate or enhance the public's ability to engage in the traditional activities associated with the Public Trust. The Public Trust exists as a servitude that is incidental to sovereign lands, but remains in place even if the state has granted the fee title to another party. If you think of it much like a road RW that is an easement over the fee ownership of the roadfront landowner, then you get a fairly accurate idea of the relationship of the Public Trust to the fee title of the land beneath. The private landowner may have fee to tidelands that were formerly sovereign lands, but he is very limited as to what he can do with that land. Like the roadfront owner can't do anything with the land within the RW that inhibits the public's ability to use those lands for any use rightfully associated with a public road RW, neither can the tideland owner do anything with the tidelands he has fee title to that inhibits the public's ability to use those lands for valid Public Trust uses.

OK, all that is for some background understanding, but what's that mean for practical application? How does that affect your job and what you report to your client?

First, you've already verified that the original grant from the state contains language conveying lands beneath the water. Assuming that all the subdivided lands shown on the map you attached are within that original grant, then all of those lands, whether above or below the HWM are in private ownership. Second, check to see if there is any indication on the map as to whether the area below the HWM was intended to be an open space area in common ownership of all lot owners within the subdivision. This may also be a matter of common law or case law in NY which has established a presumption that such areas are either presumptively assumed to be part of the upland parcel(s) adjacent to it, or presumptively assumed that land shown within a subdivision as land separate from the adjacent lots and not otherwise designated is considered to be common interest land. This can vary quite a bit from state to state, and NY tends to be quite different from most other states when it comes to titles within subdivisions.

Your client is going to need to know not only what they have fee title to, but what they can effectively use in the proprietary sense vs. what portion they own but may have very limited ability to use and only for very limited specific uses. That is, what part of the land they own is subject to the Public Trust. For that answer, your best bet is to contact the state agency that manages NY's public lands. From the bit of Google search I did, unless you already have better knowledge as to which agency, I'd start with the Dept of Environmental conservation, Division of Lands & Forests, or possibly the Division of Water. Typically, Water agencies, regardless of whether federal, state, or local, are concerned with the water and don't give much thought to the land under or around except to the extent that it is or can be shaped to hold and direct water for storage and distribution.

State law as to how shore changes are viewed legally as to their effect on littoral title will determine where the edge of the Public Trust is (old seawall or new seawall) and whether your client has the right to reclaim upland area back to the pre-Sandy location. Many states don't recognize any difference between what we might think of as an avulsive event (sudden and perceptible such as noticeable changes occurring from a single storm) and normal erosion (typically considered to be slow & imperceptible). How NY has dealt with it in statute and/or case law will determine whether your client can rebuild the old seawall and refill the land behind it.

In short, you need to have the answer to "What is the boundary", which is a legal question, before you can determine "Where is the boundary", which is a factual question. If the law is well established on the mapping and shoreline change questions, a surveyor can answer both the "What" and "Where" questions by applying that law in order to recognize the "What". If you can't find well-established legal precedent to apply to this situation, then you will need to get a legal opinion from the legal unit of the agency or division that has jurisdiction, or your client may need to get a legal opinion for you.

My bet is that there is enough established law that you could, with enough time to track it down, come up with the answers yourself, or that you can, with a little effort, find a knowledgeable surveyor or attorney in the appropriate agency to provide you with the proper principles of law so that you can apply them.

Sounds like a great opportunity for a learning experience. It also could be, if you shortcut with assumptions rather than tracking the answers from good authority, an opportunity to later learn from your mistakes. The former will likely be a little more time consuming and cost a little more in the short term. But the latter could be a lot more painful and a great deal more costly in the longer term. Be cognizant that of all the boundary litigation on the books, the majority involves some manner of water boundaries.

Current High Water, could the mean MHW? If so, would this not be obtained by a topo then a Vertcon conversion to get the MHW elevation?

Luke J. Crawford, post: 422320, member: 11382 wrote: Current High Water, could the mean MHW? If so, would this not be obtained by a topo then a Vertcon conversion to get the MHW elevation?

Yes, MHW. MHW ran along the wall. Still does.

eapls2708, post: 422291, member: 589 wrote: I think that you've stumbled into a question that's quite a bit more complicated than you might think. Being a tidal waterway, the sound is considered to be navigable for title purposes, even if not actually physically navigable (Phillips Petroleum v. Mississippi, 484 US 469, 1988). That means that the tidelands and submerged lands under the sound are or were sovereign land of the state. It's that land title designation that is at the root of making the question a complex one.

Sovereign lands are those owned by the State in trust for the public. States may not dispose of sovereign lands in a manner that alienates the public's ability to use those lands and the waters above them (Illinois Central Railroad v Illinois, 146 US 387, 1892). However, they may dispose of sovereign lands as long as the public's right and ability to use the lands for the uses associated with the Public Trust Doctrine are not unduly impaired (Shively v. Bowlby, 152 US 1, 1894).

The Public Trust is the public's right to use navigable waters and the lands beneath them. The traditional uses had always been travel, commerce, and fishing, but have expanded to other things like scientific study, habitat restoration, and a few other activities seen to be to the benefit of the public as a whole and which facilitate or enhance the public's ability to engage in the traditional activities associated with the Public Trust. The Public Trust exists as a servitude that is incidental to sovereign lands, but remains in place even if the state has granted the fee title to another party. If you think of it much like a road RW that is an easement over the fee ownership of the roadfront landowner, then you get a fairly accurate idea of the relationship of the Public Trust to the fee title of the land beneath. The private landowner may have fee to tidelands that were formerly sovereign lands, but he is very limited as to what he can do with that land. Like the roadfront owner can't do anything with the land within the RW that inhibits the public's ability to use those lands for any use rightfully associated with a public road RW, neither can the tideland owner do anything with the tidelands he has fee title to that inhibits the public's ability to use those lands for valid Public Trust uses.

OK, all that is for some background understanding, but what's that mean for practical application? How does that affect your job and what you report to your client?

First, you've already verified that the original grant from the state contains language conveying lands beneath the water. Assuming that all the subdivided lands shown on the map you attached are within that original grant, then all of those lands, whether above or below the HWM are in private ownership. Second, check to see if there is any indication on the map as to whether the area below the HWM was intended to be an open space area in common ownership of all lot owners within the subdivision. This may also be a matter of common law or case law in NY which has established a presumption that such areas are either presumptively assumed to be part of the upland parcel(s) adjacent to it, or presumptively assumed that land shown within a subdivision as land separate from the adjacent lots and not otherwise designated is considered to be common interest land. This can vary quite a bit from state to state, and NY tends to be quite different from most other states when it comes to titles within subdivisions.

Your client is going to need to know not only what they have fee title to, but what they can effectively use in the proprietary sense vs. what portion they own but may have very limited ability to use and only for very limited specific uses. That is, what part of the land they own is subject to the Public Trust. For that answer, your best bet is to contact the state agency that manages NY's public lands. From the bit of Google search I did, unless you already have better knowledge as to which agency, I'd start with the Dept of Environmental conservation, Division of Lands & Forests, or possibly the Division of Water. Typically, Water agencies, regardless of whether federal, state, or local, are concerned with the water and don't give much thought to the land under or around except to the extent that it is or can be shaped to hold and direct water for storage and distribution.

State law as to how shore changes are viewed legally as to their effect on littoral title will determine where the edge of the Public Trust is (old seawall or new seawall) and whether your client has the right to reclaim upland area back to the pre-Sandy location. Many states don't recognize any difference between what we might think of as an avulsive event (sudden and perceptible such as noticeable changes occurring from a single storm) and normal erosion (typically considered to be slow & imperceptible). How NY has dealt with it in statute and/or case law will determine whether your client can rebuild the old seawall and refill the land behind it.

In short, you need to have the answer to "What is the boundary", which is a legal question, before you can determine "Where is the boundary", which is a factual question. If the law is well established on the mapping and shoreline change questions, a surveyor can answer both the "What" and "Where" questions by applying that law in order to recognize the "What". If you can't find well-established legal precedent to apply to this situation, then you will need to get a legal opinion from the legal unit of the agency or division that has jurisdiction, or your client may need to get a legal opinion for you.

My bet is that there is enough established law that you could, with enough time to track it down, come up with the answers yourself, or that you can, with a little effort, find a knowledgeable surveyor or attorney in the appropriate agency to provide you with the proper principles of law so that you can apply them.

Sounds like a great opportunity for a learning experience. It also could be, if you shortcut with assumptions rather than tracking the answers from good authority, an opportunity to later learn from your mistakes. The former will likely be a little more time consuming and cost a little more in the short term. But the latter could be a lot more painful and a great deal more costly in the longer term. Be cognizant that of all the boundary litigation on the books, the majority involves some manner of water boundaries.

Thank you.

Yes, the grants from NYS to these landowners passed fee title to the lands under water. I clearly ask this from nys in each instance and each time they tell me they claim ownership up until the grant line, afterward is private ownership (STILL subject to the public easement and rights of navigation)

75 years ago the owners might have been able to 'fill in' the land, however, as we all know, times have changed. They can no longer just fill in as environmental laws etc have taken hold.

Here, they rebuilt their damaged wall. They had approvals to do so and have already done so years ago.

I agree about the 'what' part of the question needs to be determined. Which I guess ultimately was why I was seeing if anyone had any cases where this 'lot' question had arose before.

I think you and another poster are going to be correct and I will follow up once I research. I think that the deed to the beach lot and association may include the rights to the lands under water. We shall see.

Peter Lothian - MA ME, post: 422246, member: 4512 wrote: It looks to me as though the intent was to reserve the under water lands. Did you grantor search the developer to see if they did convey the land under water at any time before or after selling the lots? Since the "Beach Lot" was intended to be used in common by the lot owners, I wonder if a lot owner's association was established to manage the common land? That would be the most likely party to be granted the under water lands.

Turns out that I found the association's filed rules, covenants, etc and it doesn't mention anything besides some restrictions etc.

The deed to the beach lot conveying to the association deeds the beach lot and also states that it transfers any and all rights that the development Corp has to any other lands under water or not.

So this seems to transfer all the under water lands as well as the beach lot. I guess it can be also interpreted as the lands under water adjoining the beach lot, but it does say 'all' that the seller owns under water.

This lot was sold after the other lots so if those prior deeds had conveyed lands under water then the development Corp would only own the land under water next to the beach lot to transfer with the beach lot deed. But it sure seems like the intent was to just sell the lots as shown on the map and then transfer the under water lands to the association as the association deed was the only that mentioned anything about the lands under water.

Thank you for tipping me on this as it truly wasn't something I had thought of.

And thank you all who responded.

And thank you for letting us know how it all shook out.

Luke J. Crawford, post: 422320, member: 11382 wrote: Current High Water, could the mean MHW?

Yes, almost certainly so.

Luke J. Crawford, post: 422320, member: 11382 wrote: If so, would this not be obtained by a topo then a Vertcon conversion to get the MHW elevation?

NO! That would be a very poor way to determine the MHWL and could earn you a heap of liability.

The National Oceanic Service (a part of NOAA) maintains tide stations and tidal datum records for each of those stations. If you need to re-establish the MHWL (where that line is coincident with the Mean High Tide Line, MHTL), you need to do so relative to the nearest relevant tide station(s). Begin at the NOAA Tides & Currents web site: https://co-ops.nos.noaa.gov/

From there, you can access tide station data by picking the state on the map, then picking individual tide stations on the more detailed state map that appears. There is tons of educational material also available through that site that can give you an very good understanding of tides and determining tidal datums.

Rich., post: 422529, member: 10450 wrote: Turns out that I found the association's filed rules, covenants, etc and it doesn't mention anything besides some restrictions etc.

The deed to the beach lot conveying to the association deeds the beach lot and also states that it transfers any and all rights that the development Corp has to any other lands under water or not.

So this seems to transfer all the under water lands as well as the beach lot. I guess it can be also interpreted as the lands under water adjoining the beach lot, but it does say 'all' that the seller owns under water.

This lot was sold after the other lots so if those prior deeds had conveyed lands under water then the development Corp would only own the land under water next to the beach lot to transfer with the beach lot deed. But it sure seems like the intent was to just sell the lots as shown on the map and then transfer the under water lands to the association as the association deed was the only that mentioned anything about the lands under water.

Thank you for tipping me on this as it truly wasn't something I had thought of.

And thank you all who responded.

Seems like you've done a pretty good job of checking the sources you needed to check. Lacking any info to the contrary, your interpretation of the ownership of the underwater lands is likely correct.