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THE OWNER OF LAND HAS AN ABSOLUTE PROPERTY RIGHT IN THE SURFACE WATERS COLLECTED ON THAT LAND AND CAN DIVERT IT BEFORE IT FLOWS INTO A DEFINITE WATER COURSE (A STREAM, FOR EXAMPLE) (FOURTH DEPT).

The Fourth Department, in this dispute over water rights, noted that the Monroe County Water Authority (MCWA) owned surface water on its land and could divert it before it entered a definite water course:

… [W]e agree with MCWA that the court erred in determining that plaintiffs ( a golf course) have riparian rights to the surface waters collecting on MCWA’s property. “The owners of land on a water-course, are not owners of the water which flows in it” … , and “the law has always recognized a wide distinction, between the right of an owner, to deal with surface water falling or collecting on [its] land, and [an owner’s] right in the water of a natural water-course” … . “In such [surface] water, before it leaves [the owner’s] land and becomes part of a definite water-course, the owner of the land is deemed to have an absolute property, and [the owner] may appropriate it to [its] exclusive use, or get rid of it in any way [it] can, provided only that [the owner] does not cast it by drains, or ditches, upon the land of [its] neighbor; and [the owner] may do this, although by so doing [it] prevents the water reaching a natural water-course, as it formerly did, thereby occasioning injury to . . . other proprietors on the stream” … . Webster Golf Club, Inc. v Monroe County Water Auth., 2023 NY Slip Op 04280, Fourth Dept 8-11-23

Practice Point: A property owner owns the surface water collected on the property and can divert the surface water before it reaches a definite water course like a stream or river.

 

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BECAUSE THE STATE, NOT THE TOWN, OWNS THE LAND BENEATH THE LAKE, THE TOWN DID NOT HAVE JURISDICTION TO BRING CRIMINAL CHARGES BASED UPON THE CONSTRUCTION OF DOCKS; THE CRIMINAL MATTER WAS DISMISSED ON THAT GROUND AND PLAINTIFFS BROUGHT A MALICIOUS PROSECUTION ACTION; BECAUSE THE CRIMINAL MATTER WAS TERMINATED IN PLAINTIFFS’ FAVOR THE MALICIOUS PROSECUTION ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the underlying criminal matter brought against the plaintiffs (the Melchers) by the town had been terminated in favor of the plaintiffs. Therefore the plaintiffs’ malicious prosecution action against the town should not have been dismissed. The town brought criminal charges based upon plaintiffs’ construction of docks in a marina. Pursuant to the Navigation Law, the state owns the land beneath the lake and the town, therefore, did not have jurisdiction to bring the criminal charges. The criminal charges had been dismissed on that ground:

In order to maintain a civil action to recover damages for malicious prosecution, a plaintiff must show “(1) the commencement or continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding, and (4) actual malice” … . A criminal proceeding terminates favorably to the accused where the disposition is final, “such that the proceeding cannot be brought again” … , and the disposition is not “inconsistent with a plaintiff’s innocence” … . Whether a disposition was inconsistent with innocence is a case-specific determination that considers the circumstances of the particular case … .

Here, the 2008 criminal proceeding was dismissed for lack of jurisdiction pursuant to CPL 170.30(1)(f) because the Town lacked legal authority to regulate the activity upon which the criminal charges were based. In the dismissal order, the Supreme Court found that “jurisdiction over the [Melchners] ha[d] never been properly obtained and accordingly the [Melchners] [could] not be prosecuted for the offenses alleged.” Under the circumstances, the disposition was not inconsistent with the Melchners’ innocence … . Melchner v Town of Carmel, 2021 NY Slip Op 03830, Second Dept 6-16-21

 

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CITY, AS THE OWNER OF THE MARINA WITH RIPARIAN RIGHTS, WAS ENTITLED TO EJECT DEFENDANTS WHO WERE USING AN INOPERABLE VESSEL AS A HOUSEBOAT DOCKED AT THE MARINA (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the city should have been granted summary judgment in this ejectment proceeding. The defendants were using an inoperable vessel as a houseboat docked at a city marina:

To demonstrate entitlement to judgment on a cause of action for ejectment, a plaintiff must establish “(1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the defendant is in present possession of the estate” … . “The owner of uplands on a tidal, navigable waterway possesses riparian rights” which include the right to build a pier, dock, or wharf … .

Here, the City established its prima facie entitlement to judgment as a matter of law with respect to its first cause of action, for ejectment, by demonstrating that it is the owner of the subject slip … , with a present or immediate right to possession thereof … , and that the defendants are in possession of that property. City of New York v Anton, 2019 NY Slip Op 01389, Second Dept 2-27-19

 

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WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW.

The Court of Appeals held questions of fact precluded summary judgment in an action to determine whether a two-mile system of ponds and streams in a remote area of the Adirondack Mountains is navigable-in-fact.  If it is, it is subject to a public right of navigation (by canoe). If it isn't the adjacent private property owners can prohibit public use:

As a general principle, if a waterway is not navigable-in-fact, “it is the private property of the adjacent landowner” … . A waterway that is navigable-in-fact, however, “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” … . To be subject to this public easement, a waterway must provide practical utility to the public as a means for transportation, whether for trade or travel (Adirondack League Club, 92 NY2d at 603). In Adirondack League Club, though we did “not broaden the standard for navigability-in-fact,” we held that recreational use may properly be “part of the navigability analysis” … . Friends of Thayer Lake LLC v Brown, 2016 NY Slip Op 03647, CtApp 5-10-16

ENVIRONMENTAL LAW (WATER LAW, WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)/WATER LAW (WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)/ADIRONDACKS (WATER LAW, WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)

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Department of Environmental Conservation’s Finding that the Owners of Land on Either Side of a Creek Also Owned a Dam Across the Creek, and Therefore Were Responsible for Making the Dam Safe, Was Not Supported by Substantial Evidence—Dam Had Been Conveyed to the City in Condemnation Proceeding

The Third Department determined that the Department of Environmental Conservation’s (DEC’s) finding that the owners of parcels of land bordering a creek also owned the dam spanning the creek between the parcels, and therefore the landowners were responsible for the work necessary to make the dam safe, was not supported by substantial evidence. The Third Department concluded the land under the water where the dam was located had been transferred to the City of Hudson in a condemnation proceeding:

We recognize that a riparian owner’s right to the natural flow of water along its land is properly classified as real property, equally with the land … . As such, a party could acquire an interest in the water flow separate and distinct from the land under the water … . The controlling point here, however, is that the “real estate” acquired in the condemnation, in conjunction with the indenture and agreement, is as defined under the WSA [Water Supply Act]. The comprehensive statutory definition for “real estate” embraces both the water and the “lands under water.” Because the [DEC] considered only the “rights” that the City acquired by the condemnation and not the “property,” the ALJ’s conclusion that petitioners own the dam is not supported by substantial evidence in the record. Berger v New York State Dept of Envtl Conservation, 2015 NY Slip Op 01496, 3rd Dept 2-19-15

 

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Underwater Land Is Appurtenant to Adjacent Upland

The Fourth Department determined defendant had no ownership rights in underwater land appurtenant to plaintiffs’ upland property:

…[T]he court properly considered the deeds submitted by plaintiffs in support of their motion. All of those deeds, with the exception of defendant’s own quitclaim deed, are more than 10 years old and therefore are “prima facie evidence of their contents” (CPLR 4522…). With respect to defendant’s quitclaim deed, plaintiffs’ attorney swore to its authenticity …, and defendant herself relies on that deed in opposition to plaintiffs’ motion.

…[E]ven with navigable waterways, “when land under water has been conveyed by the state to the owner of the adjacent uplands, the lands under water so conveyed become appurtenant to the uplands, and will pass by a conveyance of the latter without specific description” … . Here, regardless of whether title to the underwater land merges and passes with title to adjacent uplands, or is conveyed separately, plaintiffs met their initial burden. Although the State initially conveyed uplands and underwater land to Charles Smyth by separate deeds, the underwater land thereafter passed appurtenant to Smyth’s uplands, including by deeds to plaintiffs and several other landowners on North Bay, but not to defendant. Even if the underwater land could be conveyed only separately, it would have passed to Smyth’s heirs and devisees, not directly to defendant. Kernan v Williams, 2015 NY Slip Op 01122, 4th Dept 2-6-15

 

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Waterway Bordered by Private Land Deemed “Navigable-in-Fact”—Owners of the Land Cannot Prohibit Public Use of the Waterway

The Third Department, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that a waterway bordered by private land in the Adirondacks was “navigable-in-fact” and the owners of the land (plaintiffs) bordering the waterway could not prohibit public use of the waterway.  The waterway was deemed “navigable-in-fact” even though a portion of it consisted of rapids which required canoeists to carry their canoes on a privately-owned path along the rapids:

Pursuant to the common law, a waterway on private property that is not navigable-in-fact is owned by the adjacent landowners, but a waterway that is navigable-in-fact “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” … . The State cannot alienate the right of the public to travel on a navigable-in-fact waterway by transferring title in its bed and banks to a private owner … . As riparian owners never obtain ownership interests in the waters of navigable-in-fact waterways, a judicial determination that the public has the right of navigation does not result in a taking for public use without compensation … . Accordingly, the import of a judicial determination that a waterway is navigable-in-fact is that it has always been open to the public in that character, even though the riparian owners may not have believed it to be, and no trespass was committed by a traveler who navigated upon it before a court ruled upon its navigability. * * *

…[W]here, as here, the State has no sovereign or proprietary ownership interest in the land and the waterway in question passes through private property, its navigability-in-fact is determined by a common law examination of “evidence of [the waterway’s] actual practical use or evidence of capacity for practical use” … . Historically, this analysis turned on whether the waterway had the capacity to be used for commercial transportation; the public was deemed to have the right to travel on “every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks” … . More recently, the Court of Appeals clarified that commercial use is not the only relevant factor, and that a waterway’s capacity for recreational use is also significant in determining its navigability. “[W]hile the purpose or type of use remains important, of paramount concern is the capacity of the river for transport, whether for trade or travel” … . The Court of Appeals stated that this holding neither altered nor enlarged the applicable common-law analysis and was “in line with the traditional test of navigability, that is, whether a river has a practical utility for trade or travel” … .

Accordingly, the Waterway’s navigability-in-fact must be determined based upon its utility for travel or trade as revealed by the testimony, affidavits, maps, photographs, historical records and other evidence in the voluminous record. * * *

The Waterway’s narrow, shallow character does not preclude such a finding, as a stream that can carry only small boats may nevertheless be navigable-in-fact … . Likewise, neither the portage around the relatively short Mud Pond rapids nor the presence in the Waterway of other incidental obstacles such as beaver dams and fallen trees renders the Waterway nonnavigable, as “occasional natural obstructions do not destroy the navigability of a [waterway]” … . On the contrary, the presence of such occasional obstructions in a navigable-in-fact waterway gives rise to a public right to circumvent them by “mak[ing] use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands” … . Friends of Thayer Lake LLC v Brown, 2015 NY Slip Op 00420, 3rd Dept 1-15-15

 

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Construction of Dock Could Not Be Regulated by Town—Land Under Navigable Waters Owned by State

The Third Department determined that the Lake George Town Planning Board did not have jurisdiction to grant or deny petitioner’s application to build a dock in Lake George because the state, not the town, owned the land under navigable waters:

When the state owns land under navigable waters in its sovereign capacity, its exclusive authority preempts local land use laws and extends beyond the regulation of navigation “to every form of regulation in the public interest.”… .  The state holds title to the lands under Lake George in its sovereign capacity  and, thus, has sole jurisdiction over construction in the lake’s navigable waters provided it has not delegated this authority to a local government … .

“[A]bsent the delegations in Navigation Law § 46-a allowing local municipalities to regulate the manner of construction and location of structures in waters owned by the [s]tate in its sovereign capacity, municipalities bordering or encompassing such waters . . . have no authority to issue such regulations”… . The Hart Family v Town of Lake George, 515142, 3rd Dept 10-24-13

 

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State Owns Submerged Land Below a Navigable Lake, Municipality Cannot Regulate Construction on Submerged Land (Docks).

The Second Department, in a full-fledged opinion by Justice Angiolillo, determined that where the state owns a navigable lake and the submerged land below the water, the state has the exclusive authority to regulate construction on the submerged land, absent delegation of that authority to the municipality. Town of Carmel v Melchner, 2013 NY Slip Op 01259 [105 AD3d 82], Second Dept 2-27-13

 

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