Sunday, May 30, 2010

No Trespassing?

The Register-Star reported the callous reaction of Ken Faroni of O&G (Holcim's tenant) when he was told by DPW Superintendent Rob Perry that a dog had drowned in the culvert in the South Bay and the dog's grieving humans were asking that grates be installed at the culvert to prevent such a tragedy from happening again. According to Perry, “His [Faroni's] response was that there are 'no trespassing' signs and said that people should not be on the causeway at all.”

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"full and free right, liberty and privilege of entering upon and using all and every part" of the South Bay were ever withdrawn.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.


  1. Great post Carole. Anyone who has taken the Real Estate course understands the issue of Riparian rights. Bodies of water and the beaches/land that surround them are not private property. They belong to the people.

  2. that's true but they are telling you to stay off their lands. Real Estate courses also teach you what no trespassing means.

  3. The anonymous poster above seems to have missed the point of Carole's post -- that Holcim may not have the right to tell people to stay out of South Bay. Indeed, there is ample evidence (much of it submitted nearly a decade ago now to the Department of State, thanks to Don Chrstensen) that the company does not have clear title to many of the waterfront "lands" it claims, as they were built on illegal fill or in contavention of the deeds to the property. This matter has been raised to the State and the current City attorney many times, without any action.

  4. This is an excellent post Carole!

    Now, furnished with this quotation from the Heermance underwater grant, I am more confident that the South Bay is also "navigable in law." The difference - based on the question of a waterway's tidal nature - is negligible, but even more ironclad than New York State's already generous common law practice of "navigable in fact."

    (An aside: The LWRP comments have already yielded measurable results on the DEC's delineating process for the South Bay - 38 years late! - on which the "navigable in law" designation may not depend after all. We'll see ....)

    Aside from the potentially "grandfathered" nature of the dike as private property, your blog states something that the anonymous poster above prefers to ignore: it is a fact that citizens fully in their legal rights can and do approach the hazardous culverts regularly, and without setting foot on land.

    I am terrified by the culverts, but many times I am right next to them as I study the South Bay from my kayak. I can assure everyone that they are large enough, and the suction powerful enough, to swallow an adult.

    The anonymous poster is also ignorant of the fact that entry onto the East Basin's waters is legally accessible from the bank along Route 9G, no matter who owns that land. That fact is yet another privilege of the public's right to navigate the South Bay.

    Don Christensen's research is really paying off, and speaking for myself, I owe him a great thanks for that.

    The wording of the Heermance grant removes the last doubt from my mind that the South Bay may have been one of the rare exceptions in our state where a "jus privatum" was originally issued.

    On Friday, I located the earliest reference to the John Graham grant at the County deed office (from when he resold it five years after its initial purchase in 1836). That grant covered the East Basin, which included the waters that are now in L&B's possession. I can report that there was nothing specified as jus privatum in that underwater grant either, though there was no reference to the kind of generous language which was a condition we see in the Heermance grant.

    For a superb compendium of case law in New York State, see John Humbach's "Public Rights in the Navigable Steams of New York," address below. (A note on Humbach's paper, there have been many developments since its publication in 1989.)

    T. O'Connor

  5. At the City's website, one can download Save the South Bay's comments; or poke around to find a copy there. Either way, the document includes lengthy excerpts from legal briefs we put together summarizing land title issues in the Waterfront area. It is remarkable that the City would "negotiate" with Holcim for lands that Hudson may already own...

  6. Thanks everyone for this remarkable information. I hope that it has all been brought to the attention of Mr. Ken Faroni of O & G. And that the continued vigilance of Save the South Bay and Gossips of Rivertown
    and the people of Hudson will result in the navigable waterways becoming even moreso.

  7. The fallacy in your argument is this: SLC owns all the land around the South Bay and you can't boat into the South Bay, so you would have to trespass across SLC land to get into the South Bay. Maybe there is a right to navigate in the South Bay, but you can't legally get there to navigate.