Canal Law Handout

Law Office of Laura E. Ayers, Esq. 434 Main Street, P.O. Box 237 Schoharie, NY 12157 www.lauraayerslaw.com

Canal Law Handout

I. History and Background: 45 minutes a. Early Transportation • Roads were in poor condition, no funding to create roads • Waterways were not continuous • Appalachian mountains were a barrier 400 miles from the coast • Turnpikes were dusty in summer, impassible in spring due to mud, dangerous b. Post Revolutionary War Transportation • Bridgewater Canal in England led to a rush of canal building across Europe. • Often considered to be the first "true" canal, it required the construction of an aqueduct to cross the River Irwell, one of the first of its kind. Its success helped inspire a period of intense canal building, known as "canal mania". c. Establishing Routes for the Canals • George Washington wanted to turn the Potomac River into a navigable link to the west. Resulted in Patowmack Canal. By 1788 Washington's Potomac Company was successful in constructing five locks which took boats 4,500 feet (1,400 m) past the Potomac Great Falls • in 1784 NYS legislature was presented with the idea to create a canal through the Mohawk Valley to lake Ontario, but it failed to gain support • The Mohawk and Hudson valleys form the only cut across the Appalachians north of Alabama, allowing a water route from New York City in the south to Lakes Ontario and Erie in the west. d. Promoting the Canal • Christopher Colles presented the idea to the legislature in 1784 having surveyed the route • Gouverneur Morris and Elkanah Watson were other early proponents of a canal along the Mohawk. Their efforts led to the creation of the Western Inland Lock Navigation Company (which took the first steps to improve navigation on the Mohawk), but the company proved that private financing was insufficient. • In 1798 the Niagara Canal Company was incorporated. • Jesse Hawley and Joseph Ellicott (Holland Land Company) pressed for the creation of the canal along the Mohawk River valley e. Authorization for the Erie Canal • President Jefferson rejected the proposal because it would be too expensive

• Governor DeWitt Clinton of NY obtained approval from the NYS legislature • The Erie Canal began construction in 1817 in Rome NY and was completed eight years later at a cost of $7 million • James Geddes and Benjamin Wright, laid out the route • Canvass White an amateur engineer studied the canal system in Britain at his own expense • Nathan Roberts was a mathematics teacher and land speculator. • Yet these men "carried the Erie Canal up the Niagara escarpment at Lockport, maneuvered it onto a towering embankment to cross over Irondequoit Creek, spanned the Genesee River on an awesome aqueduct, and carved a route for it out of the solid rock between Little Falls and Schenectady—and all of those venturesome designs worked precisely as planned". • 363 Miles long, 40 feet wide, 4 feet deep • within 15 years NY became the biggest port in the Country moving greater tonnages than Boston, Baltimore and New Orleans combined. • Every major city in the state, except Binghamton and Elmira falls along the trade route of the canal • 80% of the population of upstate NY still lives within 25 miles of the canal path • The Canal was enlarged several times in 1835, 1895 and 1903 • Between 1905 and 1918 new techniques were used to “canalize” the rivers and lakes that the original man made canal had been built to avoid. Barge Canal

f. Acquisition Methods used • Chapter 262 of the Laws of 1817 was “An Act respecting the navigable communications between the great western and northern lakes and the Atlantic Ocean” • Section III: “That it shall and may be lawful for the said canal commissioners, and each of them, by themselves and by any and every superintendant, agent, engineer employed by them, to enter upon, take possession of and use all and singular any lands, waters and streams necessary for the prosecution of the improvements intended by this act….and that in case any lands waters or streams taken and appropriated for any of the purposes aforesaid shall not be given or granted to the people of the state, it shall be the duty of the canal commissioners … to make an application to justices of the supreme court….to appoint appraisers ….to make a just and equitable estimate and appraisal of the loss and damage, if any , over

and above the benefit and advantage to the respective owners and proprietors or parties interested in the premises so required for the purposes aforesaid by and in consequence of making and constructing any of the works aforesaid…. Shall make regular entries of their determination and appraisal and with an apt and sufficient description of the several premises appropriated for the purposes aforesaid in a book or books to be provided and kept by the canal commissioners…and the fee simple of the premises so appropriated shall be vested in the people of the state.” 1. What interest does the state have in those portions of the canal that were given or granted? Easement or Fee? Look to the grant or conveyance. 2. No maps required, just an apt description where eminent domain had to be used vs. voluntary grant

“As to the quantity of estate acquired by the state, I entertain no doubt that it is a fee simple. The language employed is so broad as to require a fee simple. The lands are to be deemed the property of the state, and that excludes the idea that any one else is to retain a property in them. That under such a state of the title, the lands would not revert upon the abandonment of their use for the purpose of a canal, and that such a title might be acquired under the right of eminent domain, notwithstanding the possibility that the lands might cease to be used for the purpose for which they were originally taken.” Rexford v. Knight, 11 N.Y. 308 (1854) [Interpreting the state’s use of lands for the canal as fee appropriation since 1825 when there was no map entered into evidence based only on language of statute and fact of continuous use since 1825.]

“The claim for compensation, it is said cannot well precede the appropriation of the property; and even if the Legislature had omitted to make proper provision, that does not prevent the just claim of the owner for compensation. These cases settle the right of the Commissioners to enter upon private property and appropriate it to public use without being trespassers, which is all that is necessary to the defendants' justification in this case; and they seem to obviate the difficulty of the learned judge at the circuit. The language of the Constitution is: "Nor shall private property be taken for public use without just compensation." Any law which should authorize private property to be taken for public use, and should at the same time direct that no compensation should be allowed for it, would be unconstitutional; but according to the preceding cases, a law which authorizes such appropriation, and merely omits to provide the mode of making such compensation, is not unconstitutional.” Wheelock v. Young, 4 Wend. 647 (1830). [Plaintiff’s challenged the constitutionality of the statute because it allowed a taking to occur before compensation and did not fix the mode of compensation where contractors appropriated gravel from Plaintiff’s lands for the canal]

“Proceedings were instituted before the canal board by which these lands were appropriated for the use of the Chenango canal, and an appraisal was had by the canal appraisers, pursuant to statute, and the damages were appraised at $ 2,500, and it was determined that the benefits conferred by the construction of the canal upon the owners of the property were greater than the damages sustained by them by the appropriation of the land for canal purposes, and no damages, over and above said benefits, were appraised to the owners of the land.” Whitney v. State, 96 N.Y. 240 (1884) [Example where compensation to landowner was Zero because the canal was deemed a benefit]

• Section IV: “… all interest and title, (if any) in law and equity of the Western Inland Lock Navigation Company should be vested in the people of this state.” 1. Western Inland Lock Navigation Company damage assessments and reimbursement, 1820 from State Archives.

Records documenting this company's claims for damages include a report of the appraisers on damages; resolution of the company's board of directors authorizing Barent Bleecker to receive award from the State, with his receipt for $91,616; Thomas Eddy's account of expense of appraisement; and a copy of legislative committee report on the company's petition. A law of 1817 (Chapter 262) authorized the Canal Commissioners to appropriate the company's property and to apply to the Supreme Court to appoint appraisers to assess damages to the property. The law authorized reimbursement for the damages to be paid from the Canal Fund.

Chapter 451 of the Laws of 1837 §6. “The original maps and canals of this state which purport to have been made and completed under and in virtue of the first article of title nine chapter nine of the first part of the Revised Statutes, which said maps are now filed in the office of the comptroller; and such maps of said canals as hereafter shall be made, completed approved, signed certified and filed under and in virtue of the act referred to, are hereby declared to be presumptive evidence that the lands indicated on said maps as belonging to the state, having been taken and appropriated by the state as an for the canals; and a transcript from any such maps certified as required by the act referred to , shall be of equal effect with the original.”

“The point that the title of the State was not sufficiently shown is not well taken. Objections were taken to some of the evidence offered for this purpose, but finally the State map, showing the lines of the State lands, was admitted as evidence, the plaintiff not objecting, but reserving the right, if found to be incorrect, to show the fact. This map was under the provisions of the act of 1837, chapter 451, section 6, prima facie evidence of the title of the State.” Carpenter v. Cohoes, 81 N.Y. 21 (1880) [Plaintiff was injured on bridge/highway used in connection with the canal on state lands, the State, not the city, was liable for the lack of guardrails] • • Chapter 199 of the Laws of 1910 1. Section 1 “The state engineer and surveyor is hereby directed to make the necessary surveys, field notes and manuscript maps of all such portions of the Erie, Oswego and Champlain canals as are not within the improved Erie, Oswego and Champlain Canals and of all the lands belonging to the state adjacent thereto or connected therewith on which the boundary line or “blue line” of any parcel of such land to which the state shall have a separate title shall be designated together with the names of the adjoining landowners.” 2. Section 2 “Every such map when completed shall be submitted to the canal board for its approval and when so approved shall

be signed by the members of the canal board, be certified by them as correct and filed in the office of the Comptroller. 3. Section 3. “A transcript of the original map or from a copy thereof, certified as correct, by the comptroller or by the state engineer and surveyor shall be received as presumptive evidence in all legal or judicial proceedings. 4. Section 4” The sum of twenty-five thousand dollars or so much there of may be necessary is hereby appropriated….”

“This brief epitome of two or three of the several enactments relating to the accession of lands for canal purposes, shows the trend of the Legislature has been to place in definite, systematic shape the method to be pursued in making the appropriation. In the first place, the power was vested in the Canal Commissioners, without any restriction as to the form in which they exercised that power. Their ipse dixit seemed to be all that was essential. Later, in the development of the method of acquiring these lands, the Legislature required the making of a survey and the filing of a map of the lands to be appropriated and the service of a notice containing a description of them upon the owner or occupant, as a prerequisite to the appropriation of the lands. This method relieved the State from liability arising from the acts of irresponsible contractors and assumed agents, and assured the owner the State was to award compensation for the lands taken. The drift of this legislation is, to fix liability upon the State when these preliminaries have been accomplished.” Van Alstein v. Belden, 41 A.D. 123 (4th Dept 1899) [Contractors piled dirt on Plaintiff’s land before appropriation procedure was completed and were held liable to the landowner for trespass and damages, compare with Wheelock supra where contractors were not held liable, the state was]

Under the statute an accurate survey and map of the lands are required to be made by the state engineer, "who shall annex thereto his certificate that the lands therein described have been appropriated for the use of the canals of the state." Doubtless the making of the survey and the drawing of the map thereof, with a description of the lands, was a ministerial act which could be delegated to subordinates to perform for him. But when it comes to the annexing of the certificate appropriating the lands to the use of the state, that certificate is required to be made by the engineer himself, based upon his own judgment, and it becomes the vital act appropriating the lands for which the state must pay. As we have seen, the certificate was not signed by him, but was signed by the special deputy, and it was then filed in the office of the engineer. Whether the engineer knew of it or not, we are not advised by the findings in the case. But subsequently we do find that another certificate was executed by the engineer, in which he certifies, without date, that it is a duplicate copy of a map prepared by him on file in his office, and that map was transmitted to the office of the superintendent of public works where it was filed and a notice served upon the landowner. It will be observed that the certificate refers to a map. It does not mention the certificate attached to the map, which gave the map life and power as an appropriation of land. That certificate he ignores entirely, giving no reason therefor. The certificate appropriated real estate of a value bordering upon a million of dollars. It was for lands that were not needed and have never been used for canal purposes. Such an appropriation of lands could hardly escape attention and criticism, when the state was called upon to pay therefor. As it stands, the engineer can plead his ignorance of the making and filing of the certificate. He can show that he did not approve of, or adopt, the certificate and that he only certified as to a duplicate copy of a map on file in his office. If, therefore, he did authorize the filing of the map, it is, as claimed by the learned attorney-general, suggestive of a most striking light upon the situation as indicating his unwillingness to perform himself the vital act which would put him on record and possibly make himself personally liable for the act. We, therefore, conclude that there was no appropriation of the claimant's land by the engineer, and that his special deputy had no power to make the certificate in question….So reading it, we think that the lands for canal purposes could not be taken by the engineer until the canal lands had been located by the canal board and the plans for the improvement of the canal had been approved; for prior to such location and adoption of plans, it could not well be determined as to what land would or would not be necessary for canal purposes….Our conclusion is that the engineer exceeded his authority, and that consequently his acts were void.” Ontario Knitting Company v. State, 205 N.Y. 409 (1912) [Plaintiff asserted a claim for damages for appropriated lands and the State succeeded in arguing mistakes in the appropriation procedure resulted in no taking and no damages owed]

“Under the Revised Statutes it was provided that the State should take a fee, and unless the land owner applied for compensation within one year his right should be deemed extinguished. Under the act of 1870 no land is taken or appropriated, and the title and the right remain in the owner, and an injury to the right and damages resulting are all that are contemplated. Heacock v. State, 105 N.Y. 246 (1887) [discussing flowage/flooding easements for the canal]

“So far as relates to the position that the land taken has been converted to another and a different use, it may be observed that if the State acquired an absolute title to the fee in the land, then it had the right to dispose of it as it deemed best; if it did not take the fee, but only had a right to use the land for the purpose of the canal which was constructed, the act of 1878, which released the claim of the State to the city of Binghamton with the right to use the land for the purposes of a public street, does not in any way prevent the claimants, if they had any interest or title remaining in the land, from asserting their rights.” Whitney v. State, 96 N.Y. 240 (1884). [Plaintiff’s lands were taken for the canal and they received compensation, then the state gave the lands to the city to use as a public street, a purpose Plaintiff’s complained they weren’t compensated for and for which they sought compensation]

“The full fee title of this portion of the Erie Canal, as enlarged, is vested in the State of New York and defendants have no title or valid claim thereto. These defendants may not legally assert private rights by adverse possession in or to these canal lands. (internal citations omitted) These defendants could not acquire by use an easement over or any other private prescriptive rights in or to these State lands held in fee for sovereign purposes.” State v. Case, 86 Misc. 2d 43 (Sup. Ct. Madison Co., 1976). [Farmers had been using towpath to access property and had built buildings within the Blue Line]

Full copy of State v. Case at end of materials. This case gives a good history of the canal law and state canal system.

II. Canal Maps: 60 Minutes a. Early Laws requiring mapping • Revised Statutes Part 1 Chapter 9 Title 9 Section 16 • Chapter 451 of the Laws of 1837 • Chapter 336 of the Laws of 1884 • Chapter 118 of the Laws of 1888 • Chapter 388 of the Laws of 1894

i. Geddes Maps 1817 description from the State Archives This map and profile in ink and water color of the proposed route for the Erie Canal was made by James Geddes in 1817. Geddes was appointed engineer in charge of the survey by the commissioners appointed under legislation of 1816 (Chapter 237). He was instructed to survey and map a route for the canal which, west of the Genesee River, was somewhat to the north of the route he had surveyed in 1808.

On a scale of 10 chains = 1 inch, the map shows proposed line of the canal (in green); roads; houses; mills; settlements; streams, ponds, and lakes; steep terrain; swamps and marshes; town and lot lines; and other features adjacent to the canal route.

The area mapped extends from the "Tonewanta Creek" east to the outlet of Mud Creek in the "Great Cayuga Marsh" (Montezuma). At that point a note indicates that the survey was continued by Benjamin Wright (survey not in this series). The

map and profile occupy 19 double-page sheets. A map of the entire route is located at the end of the surveys.

ii. Holmes Hutchinson Maps 1832-1843 • Holmes Hutchinson was a Civil Engineer • Shows the Erie canal by every county, including roads, municipal boundaries, buildings, waterways, bridges and landowners • Ink, wash and charcoal maps • Sized 18x26 inches • Red Line shows metes and bounds of the inner edge of the towpath • Blue line shows state ownership • In addition to the Erie Canal, they also depict: 1. The Champlain Canal 2. Erie and Champlain Canal Feeders 3. The Crooked Lake Canal 4. Cayuga and Seneca Canal 5. The Chenango Canal • Certificate of Authenticity: Certificate stating that these map and field notes are the correct map and field notes of the Erie Canal. Documentation signed by the Canal Board, Canal Commissioners, and the State Comptroller. These surveys were made pursuant to legislation of 1827 requiring a complete manuscript map and field notes of every canal to be completed. The maps were to serve as the official legal record of the state’s land rights along the canals, and certified copies were acceptable as evidence in all legal proceedings.

EXPLANATORY REMARKS. The red line, described along the inner edge of the towing path, is the line upon which all the measurements in the direction of the length of the canal were made.— The bearings of the different portions of this line are given in reference to the magnetic meridian as the same stood in the fall of the year 1833. ______The length of the several portions is inserted at the end of each, in chains and links. —The offsets at each station are represented by fed lines drawn across the canal in such a direction as, to bisect the angles formed by the two contiguous portions of the red, or base line, as it is termed, upon the towing path. The intermediate offsets are described at light angles to, and the distances upon both given from the base line in links. The latter are represented by red dotted lines, and the distances to them upon the base line reckoned, in each case, from the last preceding station. The same is likewise done with the other distances upon the base line ; those to the bridges being taken to the lines joining the nearest angles or corner posts of their abutments; those to the locks extending to the lines passing through the centres of the two nearest quoin posts, and those to the aqueducts, to the faces of their abutments. The space enclosed by the blue lines represents the portion embraced within the limits of the survey as belonging to the state, and the names of the adjoining proprietors given as they stood at the time of executing the survey. The distances are projected upon a scale of two chains to the inch.

Where the red cross lines extending from the red base line towards any stream, either have no figures denoting their length, or have a cross (┼) annexed to the figures, the canal extends to and into the stream. Where any stream or pond is on the same level with the waters of the canal, and the navigation is conducted in such stream or pond, the stream or pond is included in the canal to the high water mark of the stream, with a berm on each side of fifteen links where no towing path is designated on the map. — The spoil banks belonging to the state, of earth, gravel and stone taken from the canal and its banks in constructing them, are not designated on the map. The houses, shops, barns, and other erections within the blue lines, except those constructed by the state, are encroachments on the canal. Streams, channels and ditches leading from waste weirs, waste gates, culverts and aqueducts, though not included within blue lines, have been appropriated as drains to such waste weirs, gates, culverts and aqueducts. The length of the offsets and other cross lines are to be taken to the extent the figures indicate. , In some cases the beds of rivers and streams were excavated and improved for the purpose of the free and safe discharge of water under aqueducts and culverts, and for the purpose of guarding against damage by ice, floods and floating materials, and for the purpose of giving a direction to the stream above and below aqueducts and culverts. In many such cases, public works, of the description mentioned, are not included within the blue lines indicating the boundary of the canal. > In these, and all other cases of a similar nature, the state claims beyond the blue lines, so far as will enable it, in all cases, to repair, maintain and defend, its works : Claiming as of right, in all places, not only that which may strictly be considered the canal, but every thing fairly connected with its safety, beneficial use and enjoyment.

The foregoing explanatory remarks have been prepared as a part of this book, containing Document number one of the Map of the Erie Canal. previous to the time of submitting the Map and Field Notes of the said Erie______canal to the canal board for its approbation. Dated this fifth___ day of September 1834.

Miller v. State, 164 A.D. 522 (3d Dept., 1914) Aff’d without opinion 223 N.Y. 690 (1918)

“It is urged that the maps known as the Holmes-Hutchinson maps of 1834, and which cover the locus in quo, do not show that the claimants' lands were appropriated. There is no dispute that these maps were made under the provisions of valid laws, and that they were properly filed in the State offices designated, but it is suggested that they were not properly proved before the Court of Claims, and that it was improper, therefore, for the court to consider the same in reaching its conclusion. The maps in question show the general lines of the canal, with its environment, and at the point involved in this controversy Tonawanda creek is shown in juxtaposition to the canal. In connection with these maps, and as a part of them, there is a written note which provides that "Where any stream or pond is on the same level with the waters of the canal and the navigation is conducted in such stream or pond, the stream or pond is included in the canal to the high-water mark of the stream with a berm bank on each side of fifteen links where no towing path is designated on the map." The evidence is conclusive that Tonawanda creek was dammed and brought to the level of the canal, and that it was used as a part of the canal system, and there can be no question that it was made a part of the appropriation of lands made for canal purposes.”

Result: Land outside the “blue lines” can also be owned by the State.

ii. Schillner Maps: Maps of 1869

• B0253. Barge Canal sectional maps ("Schillner Maps"), ca. 1896. ca. 132 cu. ft. (71 maps) Description From State Archives • “This series consists of 71 manuscript maps depicting land along the Erie, Champlain, and Oswego canals acquired by the State for canal purposes up to 1896. The maps are apparently the product of surveys conducted by the office of the State Engineer and Surveyor in response to Chapter 79 of the Laws of 1895, which appropriated nine million dollars for the improvement of the canals. These maps contain only selected information from the even more detailed surveys (see series B0396, page 44). • Each sectional map provides detailed information on State-owned property, depicted as the area between two solid blue lines. The maps are especially important because they show, within dotted blue lines, the locations of the 1825 canal alignment and the related structures which had since been obliterated, such as locks, slips, dams, bridges, and roads. In addition they show city, town and county lines; streams, rivers, bodies of water and islands; property lines, along with names of owners and sometimes acreage of land; and streets, railroad lines, businesses and civic landmarks (ice companies, mills, cemeteries, etc.). • The maps are commonly referred to as the "Schillner Maps" after George L. Schillner, who apparently supervised their execution in 1896. No scale is given, but figures mark canal frontage and survey measurements by number of chains (1 chain = 66 feet).” • Important to note: the maps are not certified, nor sealed and endorsed as required by statute to be official maps

• Not presumptive evidence of the state’s ownership to the lands between the blue lines • Do constitute ancient records which are prima facie evidence of their contents pursuant to Civil Practice Laws and Rules (CPLR) Rule 4522 so long as they have been on file in the state or the register of any county any county clerk, any court of record or any department of the city of New York for more than 10 years

iii. Residency Maps

Barge Canal contract location maps, ca. 1904-1905. 2 cu. ft. (18 volumes consisting of one colored map in numerous sections on 18 sheets) Description from State Archives

The series consists of cut up sections of a printed U.S. Geological Survey topographic map of New York State that has been annotated to locate the areas covered by Barge Canal contracts. The map sections are undated but the series apparently complies with specific requirements of section four of the Barge Canal Law (Laws of 1903, Chapter 147). This law directed that all authorized canal work be done by contract, and that before any contract could be made the State Engineer must divide the whole work into sections suitable for contracting, and make maps, plans, and specifications for the work to be done.

Each of the three canal divisions and the separate canals on each division were divided into residencies, with work in each residency done under the direction of a resident engineer or an assistant engineer in charge. In 1904 the canal line was divided into 15 sections or residencies for conducting work in the field; the presence of residency numbers dates the series from approximately that time.

Annotations are by hand and in color, and were apparently made on a single topographic map of the entire State that was subsequently cut up. Contract numbers and the area covered by each contract are marked in red, with the names of respective contractors marked below them in black. Maps also provide residency numbers and these areas are marked by bars of color that remain constant throughout all map sections.

b. NY Canal Law §24, 25

§ 24. Making and recording maps. There shall be kept on file in the office of the [fig 1] corporation complete maps of every canal now or hereafter to be built on which the boundaries of every parcel of land to which the state shall have a separate title shall be designated and the names of the former owner and date of each title entered. All such maps heretofore approved by the commissioner of transportation or the corporation, or certified by such commissioner, corporation or by the state engineer or hereafter approved by the [fig 2] corporation to be correct, shall be presumptive evidence of the truth of the facts therein stated and of the ownership by the state of the lands therein described. Every such map when completed shall be approved and certified to as correct by the [fig 3] corporation. The original of said map shall be filed in the office of the [fig 4] corporation and copies thereof duly

signed and certified as aforesaid shall be filed in the office of the department of state. Any such maps filed in the office of the clerk of a county in which such lands are located or in the office in such county where conveyances are required by law to be recorded shall constitute evidence to all persons of the state's title to and ownership in said lands. A transcript of such maps certified as correct by the officer with whom such map or maps shall be filed, shall be received as presumptive evidence of the state's title to the canal lands as of the date designated on such maps in all judicial or legal proceedings.

§ 25. Making and recording of "Blue Line" maps. The commissioner of transportation shall cause the preparation of maps of the Erie, Oswego, Champlain and the Cayuga and Seneca canals as they existed prior to and independent of lands appropriated for barge canal purposes and of all lands belonging to the state adjacent thereto or connected therewith, and there shall be designated on such maps the boundaries of the lands to which the state holds title, and so far as possible the names of the owners of the adjoining lands. Every map when completed shall be approved and certified to as correct by the commissioner of transportation and be certified to as correct by the chief engineer. The original of said map shall be filed in the office of the [fig 1] corporation and copies thereof, duly signed and certified as aforesaid, shall be filed in the office of the department of state. Each of said maps so filed shall be regarded as an original copy. A blue or white print copy of such map or portion of such map or maps as related or applies to any particular county of the state shall be transmitted to and filed in the office of the clerk of such county, or in the office in such county wherein conveyances are required by law to be recorded and such filing shall constitute a notice to all persons of the state's title to and ownership of said lands. A transcript of such maps certified as correct by the officer with whom such map or maps shall be filed shall be received as presumptive evidence of the state's title to the canal lands as of the date designated on such maps in all judicial or legal proceedings.

c. Presumptive Evidence Rule • A fact [evidence] which must be received and treated as true and sufficient until and unless rebutted by other evidence • Presumptive evidence is not conclusive and may be explained or contradicted • The effect of the presumption is to place the burden on the adversary to come forward with evidence to rebut the presumption; • In order to over come the presumption, the adversary must produce "substantial" evidence to the contrary.

III. Modern Canal Law: 30 Minutes a. Laws of 1992 Chapter 766

“An Act to amend the canal law, the public authorities law and the state finance law in relation to expanding the powers and duties of the New York State Thruway Authority, transferring jurisdiction over the New York State canal system to the thruway authority, creating the New York State canal recreationway commission, and creating a New York State canal system development fund and to repeal certain provisions of the canal law and the public authorities law in relation thereto.”

Became Law August 3, 1992

b. Public Authorities Law 382

§ 382. Canal corporation 1. There is hereby created a public benefit corporation known as the "New York state canal corporation" (hereinafter referred to as the "canal [fig 1] corporation") as a subsidiary corporation of the authority. The [fig 2] canal corporation is solely created to, and shall have only the power to, operate, maintain, construct, reconstruct, improve, develop, finance, and promote the New York State canal system….

7. The [fig 1] canal corporation shall have the power to: (a) operate, maintain, construct, reconstruct, improve, develop, finance, and promote the New York state canal system as defined in the canal law;… (n) enter on any lands, waters, or premises for the purpose of making borings, soundings, and surveys; [fig 1]…

9. The [fig 1] canal corporation shall review the recommendations of the canal recreationway commission concerning the future use of canal lands in the Adirondack park issued pursuant to section one hundred thirty-eight-b of the canal law, and shall report to the governor and the legislature not later than the first day of October, nineteen hundred ninety-four, identifying any property not needed for canal purposes that may be transferred to the department of environmental conservation.

c. Today’s Canal Law

14 Articles 1. Short Title and Definitions Sections 1-2 1-A Transfer to the NYS Thruway Authority Sections 5-6 2. Powers of the Canal Corporation Sections 10-11 3. Canal Engineering Sections 20-25 4. Canal Contracts Sections 30-35 5. Acquisition of Property for the Canal Sections 40-44 6. Abandonment of Canal Lands Sections 50-54 6-A Leasing of Canal Lands Sections 55-57 7. Bridges and Highways Sections 60-69 8. Canal Navigation Sections 70-86 9. Canal Accounts Sections 90-92 10. Permits Sections 100-104 11. Canal Employees Sections 110-115 12. Damages Sections 120-121 13. Miscellaneous Sections 130-135 13-A Canal Recreationway Commission Section 138 14. Savings Clause; Laws Repealed Sections 140-142

Canal Law § 2. Definitions

The following terms when used in this chapter, unless otherwise expressly stated or unless the context or subject matter requires otherwise, shall have the following meanings:

1. "New York State Canal System", "Canal System" or "Barge Canal System" shall each mean all the canals, canal lands, feeder canals, reservoirs, canal terminals and canal terminal lands of the state as hereinafter defined. All general references herein to "canal" shall be deemed to mean the New York state canal system.

2. "Canals" shall mean the channel and adjacent state-owned banks of the inland waterways of the state constructed, improved, or designated by authority of the legislature as canals and shall include canalized rivers and lakes, canal water supply reservoirs, canal water supply feeder channels and all appertaining structures necessary for the proper maintenance and operation of the canals.

3. "Canal Terminal" or "Barge Canal Terminal" shall each mean the facilities which have been constructed or acquired under authority of the legislature in connection with the canal system for loading, unloading, and/or temporarily storing commodities transported upon the canals and shall include docks, dock walls, bulkheads, wharves, piers, slips, basins, harbors, grain elevators, buildings, equipment, tracks and roadways together with the lands now owned or as may hereafter be acquired by the state for the proper maintenance and operation of the canal terminals.

4. "Erie Canal" shall mean the portion of the canal system connecting the Hudson river at [fig 1] Albany with the Niagara river at [fig 2] Buffalo, and for the purposes of article thirteen-A of this chapter and section ninety-two-u of the state finance law and subdivision ten of section three hundred fifty-one of the public authorities law, shall be deemed to include the historic Erie Canal and its western terminus in the city of Buffalo and historic lock number 1 in the city of Albany.

5. "Oswego Canal" shall mean the portion of the canal system connecting the Erie canal at Three Rivers with Lake Ontario at Oswego.

6. "Champlain Canal" shall mean the portion of the canal system connecting the easterly end of the Erie canal at Waterford with Lake Champlain at Whitehall.

7. "Cayuga and Seneca Canals" shall mean the portions of the canal system connecting the Erie canal at a point near Montezuma with Cayuga and Seneca lakes and through Cayuga lake and Cayuga inlet to the southerly side of State Street in the city of Ithaca and through Seneca lake with Montour Falls.

8. "Canal Lands" shall mean all lands and waters forming a part of the canal system title to which was originally vested in the state, acquired by the state or which may in the future be acquired by the state for canal purposes.

9. "Blue Line" shall mean the boundary of canal lands owned by the state previous to the approval of chapter one hundred forty-seven, laws of nineteen hundred three.

10. "Old Canal Lands" shall mean canal lands lying within the blue line.

11. "Barge Canal Lands" shall mean canal lands acquired subsequent to the approval of chapter one hundred forty-seven, laws of nineteen hundred three, except barge canal terminal lands acquired under the provisions of chapter seven hundred forty-six, laws of nineteen hundred eleven, and acts amendatory thereto.

12. "Canal Terminal Lands" or "Barge Canal Terminal Lands" shall each mean canal lands acquired under the provisions of chapter seven hundred forty-six, laws of nineteen hundred eleven, and amendatory laws.

13. "Permit" shall mean a revocable agreement granting temporary occupancy or use of lands or structures of the canal system.

14. "Float" shall mean every boat, vessel, raft or floating thing navigated on the canals or moved thereupon under the direction of some person having the charge thereof.

15. "Master" shall mean every person having for the time the charge, control or direction of any float.

16. "Person" shall mean an individual, partnership, corporation or association.

17. "Great Lakes-Hudson River waterway" shall mean that section of the Erie canal from Waterford to Three Rivers Point and the Oswego canal thence to the port of Oswego as such waterway was designated by acts of congress authorizing the federal aid improvement project for the Great Lakes-Hudson River waterway.

18. "Authority" shall mean the New York state thruway authority, a body corporate and politic constituting a public corporation created and constituted pursuant to title nine of article two of the public authorities law [fig 1] .

19. "Adirondack park" shall have the same meaning as set forth in section 9-0101 of the environmental conservation law.

20. "Commission" shall mean the canal recreationway commission created pursuant to section one hundred thirty- eight-a of this chapter.

21. "Corporation" shall mean the New York state canal corporation, a subsidiary of the New York state thruway authority, created pursuant to section three hundred eighty-two of the public authorities law.

22. "Canal fund" shall mean the New York state canal system development fund established pursuant to section ninety-two-u of the state finance law.

23. "Canalway trail" shall mean any multi-use recreational trail located on lands under the jurisdiction of the corporation. The exact boundaries and location of such trail and any portions or sections thereof shall be determined by the corporation except that the boundaries and location of such trail shall be determined in such a manner that no portion thereof shall be within the Adirondack Park.

Canal Law § 40. Acquisition of property

1. The acquisition of property necessary for purposes of the improvement, use, maintenance, control, management or repair of the canal system, shall be pursuant to the provisions of the eminent domain procedure law by the corporation or by the commissioner of transportation at the request of the corporation.

2. The commissioner of transportation or the corporation as the case may be, shall cause to be prepared an accurate acquisition map of any property which he or it may deem necessary for purposes connected with the canal system or of any property in and to which he or it may deem the acquisition or exercise of an easement, interest or right to be necessary for such purposes, indicating and describing in each case the particular easement, interest or right. On the approval of such map by the commissioner of transportation or the corporation as the case may be, he or it shall acquire such property, easements, interests or rights pursuant to the provisions of the eminent domain procedure law….

17. If the [fig 1] corporation shall determine subsequent to the acquisition of a temporary easement right in property and subsequent to the filing of a description and map of such property in the office of the county clerk or register, as aforesaid, that the purposes for which such easement right was acquired have been accomplished and that the use and occupancy of said property for canal purposes are no longer necessary, and that, therefore, the term of such easement should be further limited, or if the appropriation of such easement was for an indefinite period, that such period should be fixed and determined, or that the period of such easement has by its terms expired, [fig 2] the corporation shall make [fig 3] its certificate that the use and occupancy of such property for canal purposes are no longer necessary, that the property in which such easement right was acquired is surrendered back to the affected owner of said property and that such easement right is thereupon terminated, released and extinguished. The [fig 4] corporation shall cause a copy of such certificate to be filed in the office of the department of state. Upon the filing of such certificate in the office of the department of state all rights acquired by the state in such property shall cease and determine. The [fig 5] corporation shall cause a copy of such certificate together with notice of the filing thereof in the office of the department of state to be mailed to the owner or owners of the property affected, as certified by the attorney general, if the place of residence of such owner or owners is known or can be ascertained by a reasonable effort. A further copy of such certificate and notice of filing shall be filed in the office of the recording officer of each county wherein the property affected is situated. On the filing of such certificate and notice with such officer it shall be the duty of such officer to record same in the books used for recording deeds in the office of such officer.

Canal Law § 42. Removal of encroachments The [fig 1] corporation is authorized to cause to be removed from canal property any building, part of a building or structure erected, placed, maintained or otherwise occupying such canal property, if, in [fig 2] its opinion, the removal is necessary for the improvement, use, maintenance, control, management, repair or operation of the canal system. It shall be the duty of any person owning or maintaining such a building, part of a building or structure to remove the same within thirty days from the service by the [fig 3] corporation upon said person of a notice ordering its removal. Upon the failure of the person so ordered to remove the building, part of a building or structure, the [fig 4] corporation may, without liability on the part of the state or the corporation, take whatever action [fig 5] it may deem necessary to cause the removal. Service of the order of removal must be personal if the person to be served can be found within the state. If the [fig 6] corporation shall not be able to serve such notice or cause the same to be served on the said person within the state after making a reasonable effort so to do, service may be made by attaching such notice to the said building, part of a building or structure.

Canal Law§ 43. Exchange of property In order to facilitate the acquisition of property as defined in this article, and which, in the judgment of the [fig 1] corporation, will be in the public interest and necessary for canal purposes, payment for such property may be made by means of an exchange therefor of property found to be no longer necessary or useful as a part of the barge canal system, or as an aid to navigation thereon, or for barge canal terminal purposes. The property to be so acquired shall be of at least equal value to that of such property to be exchanged. The [fig 2] corporation is authorized and empowered to enter into an agreement with the owner or owners of such property to be so acquired, upon such terms and conditions as to [fig 3] such corporation shall seem appropriate and proper to accomplish such purpose. In all such cases, the property so to be exchanged shall first be declared abandoned by official order of the [fig 1] corporation which order shall set forth the benefits to be obtained by such exchange. In such abandonment it shall be unnecessary to conform to the provisions for abandonment made in section fifty-one of this chapter. The agreement and the title to the property to be acquired shall be subject to the approval of the attorney-general. Upon the approval of title by the attorney-general, the [fig 2] corporation is authorized and empowered to execute in the name of the people of the state of New York, a quit-claim deed to effectuate such exchange, which shall be subject to the approval of the attorney-general. The deed so executed, before becoming effective, shall be recorded in the office of the secretary of state. Compensation on account of excess value if any, of the lands so acquired shall be adjusted and paid in the manner provided by section forty of this article, as in the case of property taken by appropriation.

IV. Abandonment of Canal Lands: 30 Minutes a. Generally: Constitutional Provisions

NY CLS Const Art XV, § 1 (2012) § 1. [Disposition of canals and canal properties prohibited] The legislature shall not sell, [fig 1] abandon or otherwise dispose of the now existing or future improved barge canal, the divisions of which are the Erie canal, the Oswego canal, the Champlain canal, and the Cayuga and Seneca canals, or of the terminals constructed as part of the barge canal system; nor shall it sell, [fig 2] abandon or otherwise dispose of any portion of the canal system existing prior to the barge canal improvement which portion forms a part of, or functions as a part of, the present barge canal system; but such canals and terminals shall remain the property of the state and under its management and control forever. This prohibition shall not prevent the legislature, by appropriate laws, from authorizing the granting of revocable permits or leases for periods of time as authorized by the legislature for the occupancy or use of such lands or structures.

NY CLS Const Art XV, § 2 (2012) § 2. [Prohibition inapplicable to lands and properties no longer useful; disposition authorized] The prohibition of sale, abandonment or other disposition contained in section one of this article shall not apply to barge canal lands, barge canal terminals or barge canal terminal lands which have or may become no longer necessary or useful for canal or terminal purposes; nor to any canal lands and appertaining structures constituting the canal system prior to the barge canal improvement which have or may become no longer necessary or useful in conjunction with the now existing barge canal. The legislature may by appropriate legislation authorize the sale, exchange, abandonment or other disposition of any barge canal lands, barge canal terminals, barge canal terminal lands or other canal lands and appertaining structures which have or may become no longer necessary or useful as a part of the barge canal system, as an aid to navigation thereon, or for barge canal terminal purposes.

NY CLS Const Art XV, § 3 (2012) § 3. [No tolls to be imposed; contracts for work and materials; no extra compensation] All [fig 1] boats navigating the canals and the owners and masters thereof, shall be subject to such laws and regulations as have been or may hereafter be enacted concerning the navigation of the canals. The legislature shall annually make provision for the expenses of the superintendence and repairs of the canals, and may provide for the improvement of the canals in such manner as shall be provided by law notwithstanding the creation of a special revenue fund as provided in this section. All contracts for work or materials on any canal shall be made with the persons who shall offer to do or provide the same at the lowest responsible price, with adequate security for their performance as provided by law [fig 2] .All funds that may be derived from any sale or other disposition of any barge canal lands, barge canal terminals, barge canal terminal lands or other canal lands and appertaining structures and any other funds collected for the use of the canals or canal lands shall be paid into a special revenue fund of the treasury. Such funds shall only be expended for the maintenance, construction, reconstruction, development or promotion of the canal, canal lands, or lands adjacent to the canal as provided by law.

NY CLS Const Art XV, § 4 (2012) § 4. [Lease or transfer to federal government of Barge Canal] Notwithstanding the prohibition of sale, abondonment or other disposition contained in section one of this article, the legislature may authorize by law the lease or transfer to the federal government of the barge canal, consisting of the Erie, Oswego, Champlain, Cayuga and Seneca divisions and the barge canal terminals and facilities for purposes of operation, improvement and inclusion in the national system of inland waterways. Such lease or transfer to the federal government for the purposes specified herein may be made upon such terms and conditions as the legislature may determine with or without compensation to the state. Nothing contained herein shall prevent the legislature from providing annual appropriations for the state's share, if any, of the cost of operation, maintenance and improvement of the barge canal, the divisions thereof, terminals and facilities in the event of the transfer of the barge canal in whole to the federal government whether by lease or transfer.

The legislature, in determining the state's share of the annual cost of operation, maintenance and improvement of the barge canal, the several divisions, terminals and facilities, shall give consideration and evaluate the benefits derived from the barge canal for purposes of flood control, conservation and utilization of water resources.

b. Method of Abandonment: • Former Method: Legislative Act • the legislature from time to time authorized the direct legislative abandonment of specific canal lands • Example: ►Laws 1911, Chaps. 893, 894 ►provided that certain lands in the county and city of Schenectady, no longer used for canal purposes, could be sold and transferred to the City of Schenectady

• Example: “The claimants aver other acts of the legislature providing for the entire abandonment of the Chenango canal by the State and for the disposition of its lands, and they complained particularly of the donation of the lands by the State to the city of Binghamton under the act of 1878. They also allege that the municipality of Binghamton proceeded to lay out a street, to fill in, grade and otherwise change the relative status of the canal surface, so as to completely destroy the basement of the hotel, and to impose large assessments and onerous charges and burdens upon claimants as owners of the residue of the premises.” Whitney v. State, 96 N.Y. 240 (1884)

• Modern Method: Canal Law 50

Canal Law § 50. Authority to abandon canal lands 1. Authority is hereby conferred upon the [fig 1] corporation to abandon any portion of barge canal lands, barge canal terminal lands, or old canal lands and appertaining structures constituting the canal system prior to the barge canal improvement, which have or may become no longer necessary or useful as a part of the barge canal system, as an aid to navigation thereon, or for barge canal terminal purposes. This authority, however, shall not include the abandonment of a barge canal terminal unless such terminal has been by a special act of the legislature previously determined to have become no longer necessary or useful as a part of the barge canal system, as an aid to navigation thereon, or for barge canal terminal purposes. 2. Abandonments authorized pursuant to this section shall be subject to the provisions of subdivision seventeen of section ten of this chapter.

Canal Law §10 General powers and duties of the corporation relating to canals 17. Cause to be acquired lands necessary for canal purposes and cause to be abandoned such canal lands as are no longer necessary or useful for canal purposes. The commissioner of environmental conservation shall be given notice of any lands located within the Adirondack park which are no longer necessary or useful for canal purposes and which are to be abandoned, and shall be given sixty days within which to request the transfer of such lands. Such lands for which such a request has been made shall be transferred to the department of environmental conservation.

Canal Law § 51. Method of abandonment Prior to the exercising of such authority of abandonment, however, the corporation shall cause a notice of any proposed abandonment to be transmitted to the commission and to be published once each week for three successive weeks in a newspaper published in the county wherein such lands are located, except that such publication shall appear in a newspaper published in the municipality or locality wherein such lands are located when there is a newspaper published in such municipality or locality. Such notice shall describe the lands proposed to be abandoned with sufficient certainty to identify them and invite interested parties to file written statements either supporting or opposing the proposed abandonment. Upon the expiration of the period of publishing said notice, when it is the case that the assessment for such lands proposed for abandonment is equal to or greater than fifty thousand dollars, the corporation [fig 1] shall hold a hearing at which evidence or further information may be submitted [fig 2] . A record shall be made of all evidence submitted at such hearing. If no hearing shall appear to the corporation to be warranted or subsequent to such hearing, should one be held, the corporation may in its discretion declare such lands abandoned for the purposes of the canal system. The corporation shall thereupon issue an official order abandoning the lands for canal purposes together with a map and description of the lands abandoned and dispose of any portion of canal lands so abandoned. Any money realized from the sale of such land shall be deposited into the canal fund.

Public Land Law § 33. Sale of unappropriated state lands; notice and place of public sales 1. The commissioner of general services may, from time to time, sell unappropriated state lands at public auction or by sealed bids in such parcels as he deems for the best interests of the state. Previous to every sale, he shall fix the lowest sum at which each lot may be sold, and shall designate at least one newspaper in the county where the lands to be sold are situated, in which the commissioner shall cause notice of the time, place and description of sale to be published, at least once a week for four weeks, successively, before the sale. Such notice need not be published in any other paper or papers, and any statute requiring additional publication of notices or advertisements by state officers or a department, board, bureau or commission of the state shall not apply to such notice. The commissioner may designate a representative of his office to conduct such sale. All such sales shall be held at the county seat of the county where the property is situated, unless otherwise directed by the commissioner. Upon such sales of unappropriated state land to a purchaser procured by any licensed real estate broker and the payment of the purchase price in the amount offered by such broker in behalf of the purchaser, the commissioner of general services is authorized to pay, subject to such terms and conditions as the commissioner may prescribe, a commission to such broker out of monies available therefor. Uniform rates of commission shall, from time to time, be fixed by the commissioner but shall not exceed six percentum of the purchase price. No commission shall be paid for the procuring of any sale unless (1) written authority of the broker to make such offer on a form acceptable to the commissioner, signed by the person for whom he is acting, shall be filed with the commissioner before the day of the sale and unless (2) the broker shall furnish to the commissioner evidence in such form and extent as he may require establishing that the purchaser was procured as the result of the broker's services. In no event shall a broker who is paid a commission by the commissioner as herein provided accept any other commission or fee from any

person or source for brokerage services relating to the sale of such unappropriated state land.

2. (a) Whenever a street or highway, including any adjacent land acquired or held by the state in connection with such street or highway, the title to the bed of which is in the state, shall have been legally abandoned or closed, in whole or in part, the commissioner of general services may sell and convey at public auction or by sealed bids at not less than the appraised value, in such parcels as he directs, all the right, title and interest of the state in such abandoned or closed street or highway, or the part so abandoned or closed, and in any adjacent land acquired or held by the state in connection with such street or highway; and where, in the judgment of such commissioner, a public auction is not for the best interests of the state the commissioner, in his discretion, may sell and convey such parcels of said lands at private sale to the owners of adjacent lands for a price not less than the appraised value and on such terms and conditions as the commissioner may impose. (b) The commissioner of general services may sell and convey parcels of unappropriated state land which (i) do not constitute legal building lots in the municipality in which they are located and (ii) have an appraised value of less than [fig 1] twenty thousand dollars each at private sale to any owner of adjacent lands. Consideration for such sales shall be for a price not less than the appraised value and such additional terms and conditions as the commissioner may deem necessary.

3. The commissioner of general services is authorized in his discretion to sell and convey at private sale upon such terms and conditions as he may deem proper, and to remise and quitclaim all the right, title and interest of the state in and to any unappropriated state lands acquired by or through tax sale where it shall appear that such lands are and have been privately occupied under color of title continuously for ten years or where the applicant has, in good faith, a continuous chain of title going back more than ten years from the date of application. Any such sale, if made, shall be to the person or persons claiming title because of such occupation or under such chain of title, and shall be for a consideration not less than the fair market value of the state's interest as determined by the commissioner.

4. Where a petition is presented to a surrogate's court of this state for an order directing the sale of a decedent's real property for any of the purposes provided for in section one thousand nine hundred two of the surrogate's court procedure act or otherwise, and there is reason to believe that such real property may have escheated to the people of the state of New York, and a final judgment in an action by reason of such escheat, as provided for in section two hundred and one of the abandoned property law, has not been entered, the commissioner of general services may, if it is deemed to be in the best interests of the state, authorize the attorney general to consent to such order for the sale of such real property, either at public auction or by sealed bids or private sale. A deed thereupon executed and delivered pursuant to the terms and provisions of such order, upon such consent of the attorney general, shall be deemed a bar to any claim of title of the people of the state of New York, by virtue of such escheat, in the property so sold, but shall not be deemed to affect any rights that the people of the state of New York may have in or to the proceeds of such sale. Consent, however, to such an order shall not be given in the event the price offered on a proposed private sale of such real property is less than the appraised value thereof as determined by the commissioner of general services.

5. (a) The commissioner of general services may sell and convey improved, unappropriated state lands by competitive solicitation of offers through a request for proposals or similar method where in his or her judgment, a public auction is not in the best interests of the state. Such solicitation shall document the minimum qualitative and quantitative factors in addition to sale price to be used as criteria in the evaluation of offers and the general manner in which the evaluation process and selection of the most responsive and responsible offeror is to be conducted. Clarifications may be sought from offerors for purposes of assuring a full understanding of responsiveness to the solicitation requirements. Where provided for in the solicitation, revisions may be permitted from all offerors determined to be eligible for award. Disclosure of the content of competing offers, other than statistical tabulations of offers received or of any clarifications or revisions thereto, shall be prohibited prior to award. All offers or separable parts thereof may be rejected. (b) Establishment of the minimum sale price for the competitive solicitation shall be based upon a certified appraisal or certified appraisal report as defined in article six-E of the executive law. (c) The commissioner of general services shall designate at least one newspaper in the county where the lands to be offered are situate, in which he or she shall cause a notice of the solicitation to be published at least once a week for four weeks successively before the date set forth for receipt of offers.

c. Effect of Abandonment

Smith v. State, 9 A.D.2d 205 (3d Dept 1959)

“The appellants also base their claim to title on adverse possession. The doctrine of adverse possession is based on the presumption of a lost grant and where the State holds lands in trust for the public or for a public use and the lands are inalienable, title to these lands may not be gained through adverse possession because a grant may not be presumed ( Burbank v. Fay, 65 N. Y. 57; People v. Baldwin, 197 App. Div. 285, affd. 233 N. Y. 672; Banner Milling Co. v. State of New York, 117 Misc. 33, mod. 210 App. Div. 812, affd. 240 N. Y. 533). Article XV of the State Constitution prohibits the disposal of any canal lands except those which are no longer necessary to the canal system and such lands may only be abandoned pursuant to a procedure set up by the Legislature in sections 50 and 51 of the Canal Law. There has been no such abandonment of the property here involved, and since no grant of the property could have been made the appellants' claim to title by adverse possession must fail.”

[Plaintiff’s claimed ownership of a portion of Big Island located in the De Ruyter Reservoir in Madison Co.]

Montfort v. Benedict, 199 A.D.2d 923 (3d Dept. 1993).

“Defendants first argue that Supreme Court erred in its denial of their motion to dismiss the first cause of action insofar as it held that a prescriptive easement could be established over the former Blue Line land. Clearly, lands held and used by the State for canal purposes are owned by the State in its sovereign nature and cannot be encumbered or lost by adverse use (internal citations omitted). Here, however, the subject lands were no longer held for canal purposes. As previously stated, in 1981 the lands were declared to have been abandoned for canal purposes (L 1981, ch 741). Without any other sovereign or public purpose (see, State of New York v Case, 86 Misc 2d 43, 381 N.Y.S.2d 210), such abandoned property would be held in a proprietary capacity. The NY Constitution (art XV, § 2) provides for disposition of canal lands no longer necessary or useful for canal purposes and the Canal Law ( § 10 [17]; §§ 50, 51) provides for the abandonment of canal lands. When the Blue Line land in question was abandoned, 1 there no longer existed a statutory prohibition to alienability; a prescriptive easement by adverse use became legally possible at that time (see, Matter of City of New York [Mileau Corp.], 72 AD2d 745, 746) and in fact was confirmed in the State's quitclaim deed to defendants. Accordingly, Supreme Court did not err in finding that an issue of fact existed as to plaintiff's adverse use of the subject Blue Line beach area. Foot note 1 While the record reflects that a de facto abandonment existed well before the 1981 legislative acknowledgment of abandonment, no attempt has been made to establish when the abandonment actually commenced and its interplay with plaintiff's use dating back to 1943 when Montfort purchased a right-of- way for access to the subject beach, in which the description included the Blue Line area of the beach.”

V. Sources of Information on Canals: 10 Minutes a. NYS Canal Corporation • http://www.canals.ny.gov/about/index.html tabs: Home Boating Trails Water Levels Communities History and Education Doing Business News, Events & Maps

b. NYS Archives • http://www.archives.nysed.gov/d/index.shtml] • click Browse by Collection 1. click Transportation a. click New York State Canal System i. Holmes Hutchinson Survey Maps 1. Erie Canal 2. Champlain Canal 3. Erie and Champlain Canal Feeders 4. Crooked Lake Canal 5. Cayuga and Seneca Canals 6. Chenango Canals ii. Canal Images iii. Erie Canal Drawings iv. DeWitt Clinton’s Petition to Legislature 1816

c. Websites: • http://www.eriecanal.org/UnionCollege/175th.html • https://eriecanalmuseum.org/