How did the South Bay, once a center of shipping and, to quote Don Christensen, "part of the texture of life in Hudson," become a place where the citizens of Hudson cannot set foot or paw or dip an oar?
When Samuel T. B. Heermance was given a "Grant of Land Underwater" for an area of "41 acres, 3 roods, and 10 rods" under the South Bay--the entire southern part of the bay--the Letter Patent defined these conditions:
"Excepting and reserving to all and every, the said People, the full and free right, liberty and privilege of entering upon and using all and every part of the above described premises in as ample a manner as they might have done had this power and authority not been given. . . ."When Heermance agreed to sell the land needed to build a railroad to the quarry, he sold only a narrow strip of land "one rod wide more or less" and "not doing any more injury than as surveyed by said line"--with the intention of protecting the rest of the waters. The promise at the time was to build a railroad on a trestle so that it would interfere with the bay and its use as little as possible.
In the years since that first trestle railroad devolved into the "causeway" we have today, the ownership of the underwater lands changed many times, but there seems to be no evidence that the people's "full and free right, liberty and privilege of entering upon and using all and every part" of the South Bay were ever withdrawn. Even if a deed existed that expressly withdrew those exceptions and reservations, it would likely be trumped by New York State Public Navigation Rights.
A commenter on South Bay Tragedy made reference to public navigation rights and provided the link to a brochure entitled New York State Public Navigation Rights: Questions & Answers. Here's how public navigation rights are defined: "The public right of navigation has existed in New York as a common law right ever since New York became a state. This right allows vessels of all kinds, including small boats and canoes, to navigate for commercial and recreation purposes on New York's freshwater rivers, streams, lakes, ponds and other waterways that are navigable-in-fact. Legally, the courts have said that the State of New York, in accordance with public trust doctrine, holds an easement on such waterways in trust for the people of the state, making them public highways for navigational purposes." [page 4]
Defining what is "navigable-in-fact," the brochure states: "For a waterway to be open to public use, it just has to be navigable-in-fact. It doesn't have to be declared navigable-in-fact by a court. In other words, if a waterway is in fact navigable for a significant part of the year and for a substantial distance, it is ordinarily safe to assume that it is legally 'navigable-in-fact.'" [page 6]
We know from the rendering done by Peter Jung and Bob Mechling that there's a lot more water in the South Bay than most people imagine, and we know from the experience of kayakers that is it navigable-in-fact.