I've been to the county map and deeds room and learned quite a bit.
The "beach and recreation" area referred to in the easement appear on a map called Lakeridge Estates filed with the county in 1980. The coordinates for those 2 areas are the lawful access points for lot owners. I doubt the lakebed owner has much shoreline there but I'll confirm it.
At any rate it clears up a misconception around here that the entire 23 acre western shoreline of the former lake was an access point. That large plot has always been regarded as community land and in fact another county map from 1925 called Map of Tusten Park section C shows the western shore as "RESERVED FOR LOT OWNERS". I've found deeds going back to 1951 that grant the buyer permission to use that reserved shoreline for "fishing, aquatic activities, croquet, tennis, promenading" and of all things hunting. I don't know how promenading and hunting go together but whatever.
So it appears there were 2 developments, the eastern being Lakeridge Estates and the western being Tusten Park. The maps indicate that the beach area is more or less contiguous with the 23 acre communal western shoreline.
That 23 acre parcel is now being subdivided and sold to people who are convinced there are no covenants or easements on it. That may change if I can show that the "reserved" status was somehow a legal convenant. I don't know if those statements of privilege on old deeds constitutes a covenant or granting.
So the water access point seems to be clearer and I am pursuing the western shoreline topic.
The DEC has informed me the Ten Mile River is protected under Article 15 of NYS water law. They didn't give me the river's classification so I will be seeking that out. It empties into the Delaware which puts it under jurisdiction of the Delaware River Basin Commision. Another division has contacted me regarding water withdrawal as the lakebed owner may be pumping from the river to keep her pond full. That is not entirely illegal but there are limits to the gallons you can take.
I'm reading up the thread tonight, I greatly appreciate all inputs. I wanted to post this new info as incomplete as it is.
Lastly for the moment there is curious wording in those old deeds stating the buyer may use the lake as it is today or in whatever future form it takes. That's a paraphrase. Interesting that they would anticipate the lake changing. If it interests anyone the entire enterprise springs from The Tusten Development Corporation which was on 42nd St. in Manhattan. It was probably a 5x8 room with a rented telephone.
Is there a way to upload images that do not come from a URL? I'd like to show the maps.
The only way, I know of, to afford access to images is to host them on a image sharing site and provide a link.
Those deeds that you found that say the large plot of land was reserved for lot owners to access the lake is a binding covenant and grants easement right that run with the land IMO. They can't be obfuscated by omission in subsequent deeds unless there is express language by the grantee giving up those rights.
You should read this NY case. While not exactly on point with your situation (I have found non that is closer to your case) it will give you some insight.
I’ve found a very interesting article regarding navigability of a waterway in New York.
an excerpt from that article. It does speak of activity in the state legislature regarding the matter. I have not searched for that.
We got a decision from the Court of Appeals, and it is an interesting dichotomy here. The decision said that we are adhering to the traditional commercial utility test in New York State. We are not going to deviate from that because it would have such an unsettling effect on real property rights. But what we do think is that times have changed, and we have to recognize that water bodies are no longer necessary avenues for transport for goods to market. So in making the determination on a case by case basis of whether a water body is navigable under a commercial test, we are going to take into account recreational use because recreation is big business in New York, so it has commercial utility. Okay, so that is one of the factors to be taken into account.
The Court of Appeals sent the case back for a determination, a trial as to whether this particular river met that particular standard. We then settled the case by allowing very limited access when water levels reached a certain amount. There were temporal levels on when people could pass through. There were severe limitations on incidental use.
I’ve found nothing in budwads link applicable to your situation. It appears to be nothing more than an argument between dominant and servient tenants of an easement. It does nothing to address “new” land created by avulsion.
You keep loosing your credibility with just about every post you make now.
Since I didn't address anything you posted and I was speaking to the OP, you are the obvious troll.
And I addressed the op. You are the first, between us, to address the other. Bugger off old creepy dude.
It's funny that's all. 42nd st. was not high rent back in the day it was crime and scam central. Hookers, pimps, drug dealers, con artists. When you read some of the old deeds describing croquet fields, horseback riding and tennis you realize this development was a bit of a scam aimed at low income New Yorkers.
But you don't realize that 42nd street, on the street level was a bit risqué. But above the street there were many high end and famous companies that had offices on 42sd street. That really doesn't have much impact on our case. But!
I knew a famous violin maker that was in the Wurlitzer Building ( Havivi ) and a famous (possible the most famous magic company ever) magic company (Luis Tannen's Magic Shop ) . Their address was 42nd street. This goes back to the 1950's. Go ahead and Google them.
I'm posting a link to a few maps of Luxton Lake and Lakeridge Estates.
I'm going to answer a few of the replies and comments posted and also mention some info I've got from DEC and DRBC. I'm doing this late, sorry.
The beach and recreation area is where the easement I referred to is. It's where the old lake narrowed back into a river (or stream) and touched the dam. The dry lakebed there is a minimal strip of 10' or so. I think it would be hard to prove trespassing. But are you saying it would not be trespassing at all due to littoral rights?budwad - The properties that are at the water's edge have littoral rights as a matter of law. But the courts have ruled that a property with an easement to access to the water's edge also have littoral rights.
I believe it would as there is only a thin strip of old lakebed there.jk - You need to refer to the map to determine if the beach and recreation area included an area that would allow you access to the remaining river.
I would have agreed right off the bat that that clause now has no meaning. But I wonder if it simply dies or goes into retirement if and when the lake comes back as I think it will some day.jk - You have a right to boat on Luxton Lake. There is no lake so that right is meaningless.
The TMR is under the jurisdiction of the Delaware River Basin Commision. DRBC has informed me that the TMR's water and bed are property of the United States, and that we may boat, fish, swim and even walk it touching bottom. This has no dependency on navigability. Accessing it is a separate issue.jk - Given the current owner of the entire lakebed controls access on both sides of the waterway, the law is clear you have no right to cross their lands to access the waterway without some legal right not presented here and it not being considered navigable removes any right to use the waterway within their property boundaries even if you could access the water.
That said, a kayaker and the DEC just lost an important 8yo case involving recreational use of a stream on private land. I've lost the link to the actual ruling document, it is extremely interesting in that it puts many physical and historical elements into play, anyway here's the gist:
The DEC had sided and even paddled with the defendant but the judge ruled that recreational use alone cannot establish a waterway as navigable-in-fact. I wonder why DRBC gave me the answer it did and if it would hold. Is it a matter of jurisdiction and river classification?
See above. DRBC says that is not true.jk - in areas where the waterway is bound on both sides of the waterway by a common owner, they can control the use of the waterway where it lies upon their property.
The Adirondack case affirms this. I will be looking into the river's history as regards commercial activity.jk - waterways crossing private lands which are not affected by tides are "navigable-in-fact" and subject to the public right of navigation only if the waterway has or had the capacity for trade or travel.
My neighbors are not rational beings. Proof of that is the civil rights lawsuit they launched as regard damage to the dam when they most likely would have won arguing simple property damage by the logging firm. And they are cheap.budwad - I have given you the case law of the state of NY with regard to if the properties along TMR still have rights by virtue of the easements that were granted to the water's edge and those properties that had frontage along the lake. You need to get the community together and create a legal fund, hire an attorney and file suit and let the court decide if all the properties along the river and those with easements to access the lake have littoral right now that the lake is no more.
The beach and recreation easement is clearly stated in all deeds in the community.
The 23 acre western shoreline "RESERVED FOR LOT OWNERS" would be harder to prove as an access point since the only "granting" of water access is that very map text plus a few references to aquatic activites on the early deeds (see images).
The Adirondack case states rivers cannot -be deemed navigable-in-fact based on recreation or "invented" commercial activity via recreation. Unfortunately in that case the kayakers do seem to have been trudging across almost unfloatable water. Maybe they chose a bad waterway to make their case.Mark47n - NYS has a very active WW kayaking and rafting community. This couldn't be possible if rivers were not considered navigable in fact. they aren't trudging along pulling their raft down a rill and claiming it navigable.
I stopped thinking of this as a lake 20 years ago. I only care about disambiguating the river access issue here, and land access as it concerns communal vs private use of the western shoreline.jk - Op wants to be able to access the water in an area where they now have to cross private priority from an easement that was adjacent to Luxton Lake. I can find no support that extends access rights to a now non existent lake to the waterway that was the feed-water for that non existent lake
That's very interesting! And something I can look into.PayrolGuy - ...a waterway, once navigable, remains navigable even if navigability subsequently diminishes or ceases. People v. System Properties, Inc. 120 N.Y.S. 2d 269, 278 (3d Dep't 1953).
That history exists, however DEC and DRBC have told me there is no agency that declares water bodies navigable. I have no idea where that determination is made.Mark47n - IF there is a history of recreation on the river, even seasonal, then it can be considered navigable by fact.
I am hoping my littoral rights are supported by the maps and deeds somehow and are also retroactive to the old lake waterline.budwad - You guys can debate the navigability of TMR all you want but it doesn't have any impact on the littoral rights that the property owners on the water's edge of the lake had and those with easement to the water's edge on the lake had.
I don't see any such easement language unfortunately. But it may lie elsewhere so that's good to know.jk - to find an answer to the question at hand, the rights of the owner of Lucky Estates has to be determined.
And, depending on what those rights may be and how issues involving avulsion are determined (apparently it is not settled law), the owner of Lucky Estates my be terribly depressed as they may realize their riparian rights, if in play, may not allow them to access the waterway.
but then, they may keel over from elation since ones rights based upon title to a shoreline actually allow one to claim title to land once underwater but now dry. That little note of “to the shore” or anything similar that would mean their boundary is not necessarily stationary means land gained as the shoreline moves becomes theirs. It has been held that the owner of land beneath a waterway will lose title as it becomes exposed and within the description of the abutting land.
Let me know what you think of that Tusten Park map.budwad - Those deeds that you found that say the large plot of land was reserved for lot owners to access the lake is a binding covenant and grants easement right that run with the land IMO. They can't be obfuscated by omission in subsequent deeds unless there is express language by the grantee giving up those rights.
In general I see budwad stating case law supporting my littoral access and jk the opposite. A few others added interesting stuff about retroactive classifications. From the Adirondack case which is being appealed it's obvious this is still an ongoing debate.
I think I said already that DRBC told me I could float or walk the river. DEC told me this:
With regards to a special protected status, we were not able to find any protected status per se. That being said, the Tenmile River is classified as a B(T) which means it’s a class B stream that is classified as Trout waters. Maintaining Water Quality standards would be a concern for this classification of water. With regards to accessing the creek across someone else’s property, this is a civil issue and DEC does not have jurisdiction.
I happen to know the state has historically stocked the TMR but I doubt that tips it in any commercial direction. The guy emphasized his team had reviewed aerial maps of the river and said it seemed to have a good flow.
The Tusten Park map shows the 23 acre former shoreline. I've bought a chunk of it so I am now that much closer to the river. The lakebed owner still has a good 30 feet of land right behind my chunk. So if budwad is correct about my littoral access I will rejoice. Otherwise I may try to buy it. Jk mentioned that "to the shore" language so I included some snippets from old deeds on the images page, though I don't think they meet that standard.
Sorry for the late responses and lump format but I was busy with work and also talking to NYS about this. And it's clear no matter how solid any data is, each of my neighbors already has their mind made up.
I really appreciate all the input here, it's opened up some possibilities I hadn't thought of.