The bank in the absence of other evidence, but if the adjoiners deeds are to centerline I could easily be swayed
Steve
It is next to impossible, to answer your question, based solely on the snippet from a deed. As you can see, those have answered have swayed in both directions; and this is from seasoned professionals. A clear and concise opinion needs to come from all of the available evidence...
based soley on what you wrote, i would be inclined to say no. it stops at the bank and then "along" the river which to me means parallel thereto
There is a clear call to the top of the bank. I don't see how that could be interpreted as to the centerline of brook. The intent couldn't be more specific. I'd read the word "along" to mean following close by, next to. The call to the stake at the other end is also informative, is the brook running all year long? If so, it would seem very odd that a stake would be set underwater. If the adjoining deed simply calls to the center of brook, you may have a more complex situation.?ÿ
I could no more render a professional opinion on the intent of that description than I could any boundary based on my recovering just?ÿone corner.
I would go with Duane's opinion here.
If a friend asked what I did over the weekend and I told him that I had a wonderful picnic on the bank of the brook, then walked along the brook for a half hour or so, then stopped and pitched my tent for the night and staked it down well. Would the friend be confused as to whether I had walked down the center of the brook in the water or simply alongside the brook??ÿ
Guys, almost every state has statutute law or clear common law practice that carries title to the center of non navigable bodies of water unless it is clearly excluded, just like roads. It makes no sense to create strips of orphaned land under the beds of creeks, just like it makes no sense to do the same with roads.?ÿ
Those of you saying that it only goes to the bank. Are you saying that just becasue you think it should, or are you actually basing it on statute or case law in your state?
Of course specific circumstances can always override general principles so I would not hazard a guess based solely on the provided information.?ÿ
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Guys, almost every state has statutute law or clear common law practice that carries title to the center of non navigable bodies of water unless it is clearly excluded, just like roads. It makes no sense to create strips of orphaned land under the beds of creeks, just like it makes no sense to do the same with roads.?ÿ
Those of you saying that it only goes to the bank. Are you saying that just becasue you think it should, or are you actually basing it on statute or case law in your state?
Of course specific circumstances can always override general principles so I would not hazard a guess based solely on the provided information.?ÿ
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But it wouldn't be orphaned if the adjoiner owned it. Perhaps there was a parent parcel that was split along the bank.
You can argue this all day either way but there is no answer without more information, as has already been pointed out.
The presumption (meaning given no other information to the contrary) is title carries to the center of the creek. There would need to be expressed, unambiguous language to overcome that because the Courts do not favor leaving useless and unconveyed strips as a policy matter.
I see this as a surveyor's description of?ÿ what he surveyed, or perhaps what he was able to survey, and he stopped measuring at the stake he set on the bank and measured down the bank to the next stake set, IMVHO, on the bank.
The surveyor's report was not to say where the title boundary ended, he was describing what he measured and left the uncertainty, distance to some point under water, to where it may be in the future.
Title is probably to the center of the branch which can be considered?ÿ an uncertainty and subject to change in location.
It reminds me of many surveys I have followed and measured myself around the local water boundaries.
Working with a timeframe that does not consider nature's display of the date, many a time I have arrived at the edge of water and bank, centerline and gradient boundary are somewhere out there around the opening where no trees grew, and it was freezing weather, full of snakes or rushing waters told me that I'm not entering the water to place myself in peril to find the actual location of the title line because I am not getting hazard pay to make this survey and the client will not pay for my medical bills if something happens.
I set something at the edge of water and state that distance and rely upon facts of title to imply where the boundary ends, at the correct location of the boundary of the waterway in consideration.
0.02
Yes, there can be exceptions.?ÿ Call to the bank of a canal and then along the canal, especially in some western states.?ÿ Call to a common wall.?ÿ But in spite of exceptions and special circumstances, even more generally and safe, the rule is if the call touches the monument it goes to the center thereof.?ÿ So, if the call is to the bank, then along the bank, you can find cases where title doesn't go to the centerline of the brook, etc..?ÿ
But, the OP is in NY and none of that matters anymore, and hasn't since 2012. There was some confusing dictum before 2012.
https://scholar.google.com/scholar_case?case=9821410340628895028&q=knapp+v+hughes&hl=en&as_sdt=4,33
And from a Florida case:
https://scholar.google.com/scholar_case?case=16126391786180533842&hl=en&as_sdt=5,33&sciodt=4,33
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"The general rule of construction of a conveyance of land bounded by water is that, unless a contrary intention appears, it passes the soil towards the center of the water as far as the grantor owns."). Patton and Palomar explains the widespread nature of this principle and the reason therefor:
All states follow the English rule that lands bounded by nonnavigable rivers and streams carry the title of the bed of the water course to the center thereof. 1169*1169 A grantee will, of course, receive all of the title of the grantor unless a contrary intention is clearly shown. This is consistent with the ordinary rule that a call to a monument carries to the middle of the monument and prevents the wasteful creation of strips of property that would be of little value to the holder thereof but would greatly impair the value of the upland tract.
Patton and Palomar, at ?? 134 (footnotes omitted)."
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Surveyors are not authorized to make up their own laws of boundary.?ÿ
unfortunately there's no web link for the case, but here's a link to relevant texas case law in a situation like this.?ÿ
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http://txls.texas.gov/wp-content/uploads/2013/01/Tyler_v_Gonzales_189_SW_2d_519.rtf
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short version: an explicit call to bank and "along meanders" is controlled by the bank call.?ÿ which is... i still don't know how i feel about that, 5 or 6 years after having this cited by the GLO to extract money out of my client.
unfortunately there's no web link for the case, but here's a link to relevant texas case law in a situation like this.?ÿ
?ÿ
http://txls.texas.gov/wp-content/uploads/2013/01/Tyler_v_Gonzales_189_SW_2d_519.rtf
?ÿ
short version: an explicit call to bank and "along meanders" is controlled by the bank call.?ÿ which is... i still don't know how i feel about that, 5 or 6 years after having this cited by the GLO to extract money out of my client.
I think the language is consistent with the rule.?ÿ Seems like a clear intent to not use the stream as the boundary.
"...at all points 15 varas distant from the bank..."
