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Tuesday, June 20, 2006 On the Waterfront

BY ANTHONY S. GUARDINO discrepancy internally in the by ZONING & using both linear distances and the s a body of land surrounded AND SE water line of Moriches Bay, and between by water and interspersed with L U the two linear distances referenced in the several navigable rivers, Long two deeds. Nevertheless, it emphasized, A Island has an extraordinary both deeds clearly referred to the mean number of beautiful views and miles high water mark of Moriches Bay or and miles of fabulous beachfront and the high water line of Moriches Bay. waterfront . Because the water line of Moriches Bay Over the years, it also has generated a was “obviously a natural object,” it should good deal of litigation to settle disputes take precedence over either of the linear involving the ownership of littoral and distances in the two deeds, the appellate riparian property—property that is adjacent court found. to the water. In addition, it noted, deeds further back Deeds and a longstanding rule typically in the chain of indicated that the set the boundary of such property at the property had traditionally been described 1 “high water mark.” In addition, as can in one way or another as extending to be seen from the recent decision of the from Dune Road, “190.20 feet to the the shore of Moriches Bay or to the high Appellate Division, Second Department, mean high water mark of Moriches Bay; water line of Moriches Bay and running in Trustees of Freeholders and Commonality thence along said mean high water mark along the shore. The Second Department of Town of Southampton v. Buoninfante,2 of Moriches Bay.” observed that it was not until 1973 that courts have developed a standard to The Trustees of the Town of Southampton, linear distances were added, although even when there is some conflict among the which owns the land beneath Moriches Bay, after this the property still was described as governing documents or otherwise. brought suit, claiming title to that strip of extending to the mean high water mark of Buoninfante arose several years ago when land along Moriches Bay created by the Moriches Bay. Thus, it concluded, there Louis Buoninfante was shown a parcel of discrepancy between the linear distances was nothing in the chain of title to suggest vacant waterfront property in the Village of mentioned in the two deeds. After Suffolk it was the intention of any grantor to West Hampton Dunes, on the shore of Supreme Court denied Mr. Buoninfante’s bound the property along the north side in Moriches Bay. He purchased the property summary judgment motion, he appealed to any way other than by reference to the and received a bargain and sale that the Second Department. shoreline of Moriches Bay. described it as running north from Dune The appellate court ruled that Mr. Accordingly, the Appellate Division Road “766.89 feet to the high water line Buoninfante was entitled to summary of Moriches Bay; thence...along the high ruled, Mr. Buoninfante was entitled to judgment. As it explained, “where there water line of Moriches Bay.” However, Mr. a judgment declaring that the northern is a discrepancy in deeds, the rules of Buoninfante’s predecessor-in-interest had boundary of his property was based on the construction require that resort be had acquired title to the property under a high water mark of Moriches Bay. first to natural objects, second to artificial deed that described it as running north objects, third to adjacent boundaries, Marking the Boundaries fourth to courses and distances, and last Anthony S. Guardino is a partner with to quantity.” Even though the high water mark may Farrell Fritz in Uniondale. In this case, it continued, there was a be recognized as a boundary, a dispute NEW YORK JOURNAL TUESDAY, JUNE 20, 2006 arising in a Long Island case as to how Moreover, the Court added, if it and almost imperceptible” and, as a result, that should be determined reached the accepted the town’s type-of-grass test it ruled that the land so gained belonged to New York Court of Appeals a number for location of the high water mark, that the riparian or the littoral owner. of years ago. test might “one day be replaced by an The appellate court added that the The parties in this case, Dolphin Lane even more sophisticated and refined test” confirmatory deed given by the former Associates, Ltd. v. Town of Southampton,3 for determining the high water line, with a property owner to the state recited that agreed that the northern boundary line consequent shift again in the on-the-site it conveyed all of the owner’s of the plaintiff’s property facing on location of a northern boundary line; on Muncie Island, including all its Shinnecock Bay in Southampton was the which would introduce an element of right, title and interest in such property. high water line. The parties disagreed, “uncertainty and unpredictability” that Under the circumstances, the appellate however, as to the method or proof by which the Court stated would be quite foreign to court stated, there remained no land the high water mark should be located. the law of . Accordingly, it on Muncie Island to which the former The plaintiff argued that the high water held that it was not appropriate to use the property owner had title. Therefore, line should have been located by reference “independent, novel means” advocated by the Appellate Division concluded, the to the line of vegetation, and not by the town to locate the high water mark. state by its appropriations in 1930 had reference to the “type-of-grass test” obtained not only the land appearing introduced by the town. Accretion and Erosion on the map of 1913 but also all the land The Court rejected the town’s position. It owned by the former property owner A high water mark can change from found it was “misleadingly simplistic” to “including that formed through accretion,” natural causes such as erosion and and the judgment against the state for seek to rely on an “exhaustive scientific accretion, and New York courts often trespass had to be reversed. search for the precise line” of average high have resolved disputes over ownership of As the cases here suggest, neighboring water, stating that there was “[n]o legal Long Island waterfront property following property owners do not argue only about significance” to the exact identification those events. In deciding these cases, the boundaries of their land; there also of the high water mark but rather what courts apply the well established law are disagreements about the ownership was needed was a “more practical, less that a riparian owner of upland property of property abutting the water. Courts sophisticated determination.” is entitled to any increase in his or her have long been utilized to settle these In the Court’s view, the boundary to the land due to the natural process of disputes, and have well-established plaintiff’s shore-side property depended accretion, and is subject to any loss of rules, yet these cases continue to arise. on a combination of the verbal formulation land due to erosion.4 Interestingly, this also is an area of law of the boundary line—i.e., the high water One such case is Bayork Realty Corp. where one can find references to Colonial line—and the application of the “traditional v. State of New York,5 which stemmed patents and deeds issued well before the and customary method” by which that from the 1930 appropriation by the state American Revolution.6 verbal formulation had been put in practice of certain acres of a portion of Jones in the past to locate the boundary line Beach known as Muncie Island, as ••••••••••••••••••••••••••••••• along the shore. described in the notices of appropriation 1. See, e.g., Tiffany v. Town of Oyster Bay, 209 N.Y. 1 The Court explained that it was the (1913) (“In the absence of language clearly indicating a dif- as certain lots, giving block and number, as ferent intent, grants of land bounded by the sea or a naviga- longstanding practice of surveyors in the plotted on a revised map of Muncie Island ble river where the tide ebbs and flows carry the title only to Town of Southampton to locate shoreline made by a certain civil engineer and dated high-water mark.”). boundaries by reference to the line of 2. 303 A.D.2d 579 (2d Dep’t 2003). April 1, 1913. 3. 37 N.Y.2d 292 (1975). vegetation. It stated that to give effect to Muncie Island, however, was enlarged 4. 303 A.D.2d 579 (2nd Dep’t 2002); see also, Trustees of such uniform practice was not, as the town through accretion after 1913 and before Freeholders & Commonalty v. Heilner, 84 Misc.2d 318 (Sup. Ct., Suffolk Co. 1975). contended, to delegate arbitrary powers the appropriation by the state. After 5. 251 A.D. 534 (3d Dep’t 1937). to surveyors to determine property lines; the appropriation had taken place, 6. See, e.g., Mulry v. Norton, 100 N.Y. 424 (1885); Town rather, it said, it was to recognize that Bayork Realty Corp. was awarded a of Hempstead v. Lawrence, 147 A.D. 624 (2d Dep’t 1911). property lines “are fixed by reference to judgment against the state for trespass, longtime surveying practice.” having successfully argued that it was If it were to employ an “entirely the owner of the increase in the size of new technique, however intellectually the property that had occurred after the This article is reprinted with permission from the June 20, 2006 edition of the NEW YORK LAW fascinating,” it would “do violence to date of the map. JOURNAL. © 2006 ALM , Inc. All rights the expectations of the parties and The Appellate Division reversed that reserved. Further duplication without permission is prohibited. For information, contact ALM introduce factors never reasonably within ruling. It found that the increase in size Reprint Department at 800-888-8300 x6111 or visit their contemplation.” of Muncie Island from 1913 on was “slow www.almreprints.com. #070-06-06-0025