Care Needed when Drafting Conveyance of Land along a Pond or Stream

Land Use


A unanimous New York Court of Appeals recently ruled that a conveyance of land along a pond or stream includes the land under the pond or stream, to the center of the water, unless a contrary intention is made clear. Knapp v. Hughes, 19 N.Y.3d 672, 2012 N.Y. Slip Op. 06991 (2012). The court emphasized that the application of their decision, “does not depend on minor variations in the language of the conveyance.” Id.

The court explained,

“To make a plain and express reservation of rights to underwater land, a grantor must do more than use the word ‘edge’ or ‘shore’ in a deed. He or she must say that land under water is not conveyed, in those words or in words equally clear in meaning.”  Id.

The parties in Knapp were neighbors who were both claiming ownership of land underneath the pond that is adjacent to their waterfront land and the exclusive right to use that part of the pond for swimming, fishing and other purposes. Id. The Court of Appeals reversed the Appellate Division, which ruled in plaintiff’s favor, and declared the defendant’s deed must be read as conveying the underwater land beneath the pond because conveyance of title to the defendant’s predecessor did not expressly exclude underwater lands. Id.

Holding that a purchase of waterfront property is presumed to include the adjacent underwater land was deemed a “common sense point,” by the court,

“It seems highly likely that most purchasers of waterfront property assume that they are acquiring not only the dry land, but the right to use the water also. Who would buy land on a pond or stream, if informed that he or she could only look at the water, not boat on it or fish or swim in it?”  Id.

The narrow exception to this presumption of adjacent underwater land ownership is the unusual case where the nature of the grant itself shows a contrary intention. The court cites In re Brookfield as such an unusual case. 176 N.Y. 138 (1903).  In Brookfield, the grantee was the owner of a mill located on a river near a pond who wanted to build a dam what would flood the pond’s shore. The grantor was the owner of all the land surrounding the pond. The grant specified that only land “that will be overflowed…in consequence of the erection,” of the dam shall be conveyed, “only for the purpose of being flowed by said pond.” Id. at 138-139. Therefore, in Brookfield, the terms of the grant strongly supported an inference that the grantor meant to transfer only shore, not underwater, land. Knapp v. Hughes, 19 N.Y.3d 672. However, it would be prudent, in light of the court’s holding in Knapp, to always use explicit terms indicating the reservation of underwater land rights in order to avoid this presumption of underwater land ownership.

The author acknowledges Nicholas J. Cappadora J.D. for his contribution to this entry.

Leave a Reply