Interesting legal question about land and creek

I try to stay well read with land use regs,state laws, etc. This one has me stumped.

I've got about 80s acres of maple and hemlock forest that is bordered by the center of a town road on one side. Back in 1982 this land had several farm and looging roads connecting it to this town road.

In 1982 (before I owned the land) the town got an easement to take a pretty big trout stream across the road - and move it to my side of the road. So, they built - or dug out a new creek bed and rerouted it. After that, the property owner lost all drive-in access because the new creek runs the entire length of the property. The owner then tried to get permission to build a bridge but after several floods he gave up. So, I got it pretty cheap ($480 per acre).

So in summary . . . the town got a easement of 50 feet to build that new creek bed in 1982. They had to get special permits from the New York Dept of Conservation also in 1982. There were "special" problems because native brook trout are in this creek.

Last summmer of 2011 after two huge storms the creek washed the road out. FEMA came and it took a month to reopen the road.

OK. My question. That man-made creek bed has far exceeded the town's 50 foot easement and keeps digging further into my land. The Dept of Environmental Conservation no longer has any records of the permit and has no idea what conditions may have been on it. I spoke to several people there and they are absolutely clueless.

So I'm wondering . . . was, or is it the town's responsible for keeping this creek within their easement boundaries ? Or is it now treated like a natural waterway and anything goes? I've got a beautiful stand of mature hemlocks on that steep bank that is being cut into and caving in from the creek.

Not a huge deal but I would like to know my legal rights if anyone actually knows. So far, I spoke with the Town Attorney, County Highway Supervisor, and several DEC officials and nobody has a clue.

Sounds to me that if all permits and records have been discarded then it is once again considered to be a natural stream and no easement has any bearing anymore. In a nutshell I would say you are "UP A CREEK WITHOUT A PADDLE"

There is WAY too many variables for anyone on here to give you sound advice. Even a good lawyer could not advise you without a complete title search, which will reveal all easements, transfers, agreements, sales, etc. Then a local attorney will have to research the town, county, and state law to be able to advise you. Bite the bullet and hire a good local attorney.
Tom

Yeah, that's what I'm assuming. The DEC acted surprised that I thought they'd keep records going back 20 years. Silly me! I'm used to pulling land records from 300 years ago at the County Clerks Office and from 400 years ago at the State Records Room. 20 years is nothing and the DEC IS a state agency. Oh well.

I've already done a complete title and records search. I have the recorded easement that applies to the creek being moved. It refers to the DEC permit to further info that was not recorded nor was it saved.

I"m no lawyer, but have you checked the records at the court house? There must be an easement of record filed there when the county got their easement. That would be separate from the permit that the DEC issued. There might have some stipulations in the easement.

Look at the bright side. What you're loosing on one side of the creek you're gaining on the other.

As you already know, "common law" in this country is based on prior case law decisions- and I'm willing to bet there are no decisions on a fact pattern like that. So it would have to be decided by a court, subject to appeals, etc., and keep in mind that the guvment, with unlimited depth of pocket, is your opponent.

But based on what I've seen, courts are very reluctant to saddle anyone (especially the government) with obligations arising from "acts of God", beyond that which the government is willing to voluntarily take on (which, in our present nanny state mentality, turns out to be quite a bit- FEMA, Disaster Declarations, etc.). So I doubt any court would tell the town to keep the stream within the easement, because whatever the stream does is an "act of God".

Generally, the law of stream erosion is based on accretion vs. avulsion. If it eats away at your side gradually, you just lose it, and as the stream moves your direction, the land "accretes" on the other side, and whoever owns the other side get the additional property. But if you lose it suddenly, in a flood, by the stream cutting a new channel, its "avulsion", and you still own on the other side, up to the former stream bed.

I think you would be wise to convert your "mature" hemlock trees into sawlogs. . .

I would suspect that the records exist somewhere ? But that was pre microsoft computer age and if they can't push a button to find it they sure as heck aren't going to go dig around in boxes to find it.

I think he said theres a road beside the creek, so road, creek, then his land, the creek keeps eroding away his land, maybe wrong but that's how I understood him?

I'm aware of natural law at it applies to creeks, rivers and even ocean shorelines are "allowed" to change. In this case though the creek is not "natural", i.e. it was man-made to adhere to a 50 foot easement. I'm curious if that matters, or not.

I would expect that it might, depending upon how the easement is written, but the burden of enforcement will almost certainly be upon you.

Dean

You need a lawyer. Our talk is only talk, here in Ky. if the creek and its boundries are 16 years old they are permanent. If you want the stream to stay in its banks good luck, you are probably going to heve to get the permits yourself and foot the bill. That is why it was so cheap.

I suspect this is the true honest answer:

> So I'm wondering . . . was, or is it the town's responsible for keeping this creek within their easement boundaries ?

I'm suspecting every official you run into will lose records, or otherwise not know anything, to keep it like this, because they know what it will cost them to do the right thing:

> Or is it now treated like a natural waterway and anything goes?

Been down that path.

1) 1950's road was built 100% on our property but moved to the property line from the meandering it did before. Road builder came along, said the S curve it created just past our property would be too severe, so he built the roadbed different than it was surveyed, within the 100 foot easement, but _not_ centered on the easement.

Survey office burned, all records lost, so not the county measures from the centerline of the road and calls that good enough. We lose 2-3 acres of land. Road going to be rebuilt, dad pointed to where the property line should be, and that a point was burried there in the 1950's. The county head with metal detector hit something within 2 feet of where dad pointed, guy said well, we don't know what we would find under the tar? The next morning they were ripping up tar and hauling tar & gravel away, for some reason they started there & everything was hauled away 2 feet deep..... Hum?

2) I have a 'wetland' that was always farmed until 1979 or so, owner retired and rented fields to a farmer, rented this wetter spot to a horse owner to make hay. There is a working tile 1/3 into it. I bought it, and guess what - it's a wetland, can't drain it at all. Doesn't matter that there is tile in it, or that it used to be farmed, they have no record of the tile, and their carefully selected pictures show it is grass so they don't have to even look at it, don't have any record of any tile in it....


So, good luck.

--->Paul

How do you know there was an easement? If you have a title insurance policy, any easements should be listed in there. I have seen some from back in the 30's show up on parcels I have bought so if it was registered, it should be with the title. Around here you give the register of deeds the legal and they will pull the title for you and you can look it over. As far as your trees and erosion goes, no matter what anybody tells you, till you go before a judge, you will not know for sure where your at. He will interpret the laws and details before him and rule as he sees fit.

LJD, I fought for several years to get permits to build a pond. I had a hard time because the powers that be said I 'could' affect trout streams down from me. I don't see how your town got away with rerouting a stream, in the first place. Like the others said "get a lawyer".
About your hemlocks, you might want consider harvesting them because of this little bug, Hemlock woolly adelgid. They are killing ours here. You can treat for them but it's labor intensive and expensive.
Good luck with your stream battle.
tim

Get an attorney that knows this type of property issues.

I DO NOT practice in this aree of the law and am unfamiliar with states other then Indiana, but still based on my experience as an attorney and ESPECIALLY with getting a Judge to impose much of a duty on a municipality

GOOD LUCK GETTING A JUDGE TO MAKE THE TOWN DO ANYTHINGGGGGGGGGG and thats still at your expense and peril in trying

Even if its not a natural waterway its a waterway now and once water flows where it will from acts of God and/or gravity the Court will likely be reluctant to impose any new duties at this time

Thats JUST AN EDUCATED GUESS not a professional legal opinion as Ive done NO research nor familair with allllll the facts

As always, I still wish you good luck in protecting your or anyones property rights

John T Only a semi retired Country Lawyer so as always NO WARRANTY

This isn't something I'm pursuing. I'd just like to know where I stand in case something ever comes up. Main issue to me is . . . is this creek now regarded a natural waterway? The Town has threatened me twice with Eminent Domain with other parts of my land. So, I'm not real trusting with what they have to say with anything and choose to have knowledge first, and then act later -if needed.

I did a Nexus-Lexus search in the legal database for case-law in New York and found nothing remotely close.

I just applied for a permit from the same environmental agency that allowed the creek to be moved back in 1982. Even though I own the land on both sides of the creek - I cannot legally build any sort of crossing without their permission and permit. So, I'm curious what they come up with. All I want to to is lay half a dozen 50 foot telephone poles over the narrowest part of the creek and make a crude bridge for driving my tractor over.

Title insurance policies usually only list the easily found easements in the public domain. That's why they give disclaimers in their small print about easements that might exist that they did not find. I find title insurance to be kind of a joke.

I've worked as a records researcher for years so I know how to dig up the easy and hard-to-find records (I've done it for several law offices).

In regard to THIS easement - it was filed in the County Clerks office under the name of the property owner (party of the first part) and the name of the Town that got the easement (party of the second part). It was a 10 minute job to find it at the County records office.

It's just poorly written, i.e. kid of vague.

It states: "easement will extend a distance of 50 feet easterly from the Town road."

Problem with that is - I own to the center of the town road. The road is 30 feet wide. Where do you measure the 50 feet from? Shoulder of the road? Center of the road? Edge of the driven path? Total claimed road width as claimed in the County road inventory during 1982?

The other thing that lacks clarity is this:

"The town has received a permit from the Department of Conservation of the State of New York permitting the change of course of the aforesaid creek and WILL comply with all the rules and regulations of the State of New York in changing said course."

So I ask - what ARE those rules and regulations that the Town had and has to follow? I have not been able for find out from the same agency that gave the permit.

That is basically the lay-out except I actually own to the center of the town road. Most town roads are not government owned and are just public right-of-ways over someone else's private land.

So, I own to the center of the road and that is the end boundary of my land. But the town put a creek on the side of the road that is between that end boundary and the rest of my land. So for now - I cannot drive into my land from the that town road because the creek is in the way. That is, unless I build a bridge. That's why the last owner sold it. He considered the land legally "landlocked" or better put "water-locked." No drive-in access. I already owned a bunch of land that borders it and it has access to a different town road. So, in realty I was the only one in town that already had drive-in access to this land without the creek in the way.

I would talk to the environmental department prolly won"t do it for you but in pa under certain guidelines you can qualify for state funding they will come and put number seven stone on the washed out bank for erosion control

You should check and see if you have a US Department of Agriculture, Natural Resources Conservation Service for you area. They are a great help in our area with Land, Grass, and water management. They even help with some of the cost.

Here we need to submit fairly detailed drawings, aerials & photos on any proposed structure to be placed in a creek to get the construction permit from DNR. Those drawings would have to make an assumption for instance that the road was say 30 ft wide and the easement went another 50 ft beyond the road edge into the woods.If this permit is granted by DNR, then a construction easement describing the precise location of the bridge and it's probable encroachment across a known town easement is drafted with maps attached etc. The construction easement states "permission is granted to construct this bridge according to plans submitted,that you will be responsible for all maintainance, etc. It is presented to town officials to sign on the bottom of the document. Aerial maps of the property do a lot to get everyone on the same page.

are you absolutely sure that the town didnt want the land from the get go? Look at it this way. They land locked the land first, then try to get it cheap. They didnt count on you being able to buy it at more than they wanted to pay. You said they have tried eminent domain on more than one occasion. In that light, I dont believe they will make anything easy for you until you want to sell it to them.

Two things on the matter, 1- if the town did everything right-legal in complying as permitted in 1982,then they are DONE with any further obligation on the stream as of 1982.2-That stream could now fall under Federal Corp of Engineers control(RULES) which is another can of worms on what can and can't be done.

Your legal description goes to the center of the road. I'd attack it another way, has the creek has meanders out of it's right of way, and you have proof by the description of the easement it is only there because of an easement I'd protest the tax bill/accessment obviously they have separated a small parcel that is now wedged between the road and the creek so it's worth less and the creek has taken up additional space, I don't know how it is in New York but in Michigan they can't access on creek, river or lake below the water line and public drains. Another tactic is to form a ACE/Tea Party group and start poking at taking public office, if you gain any traction sometimes the incumbents kiss and make nice to get you to go away. At any rate you'll need a good lawyer that is a member of the New York bar and knows New York real estate law.

Seems to me it matters whether it's still considered a river, or an artificial waterway. If you end up going to court, any government agency will argue it's a natural river, and that even if it is a man-made canal it's another agency's problem. Fighting such a battle in court is likely to be long, difficult, expensive and fruitless.

(quoted from post at 18:05:32 03/14/12) .........
I just applied for a permit from the same environmental agency that allowed the creek to be moved back in 1982. Even though I own the land on both sides of the creek - I cannot legally build any sort of crossing without their permission and permit. So, I'm curious what they come up with. [b:2ec69da570]All I want to to is lay half a dozen 50 foot telephone poles over the narrowest part of the creek and make a crude bridge for driving my tractor over[/b:2ec69da570].

Click to expand...

:lol: :lol: Silly you. Trying to do something as simple as that on your own land! I've got a creek (country drain) maybe 20 ft wide crossing my land. someone built a little foot bridge to cross it. I was planning to put something like you're talking about so I could drive tractors, trucks, etc to the other side of my land. I've got lots of trees and picked a few that were strong enough, straight enough and close enough that I could fell them right across the creek, trim them up, put some planks on and be good to go. Would have cost next to nothing. Lo and behold, I get a letter from the Drain Commission that I'm in violation because of the little foot bridge. I.e. I didn't get a permit and it's not to their standards. Never mind that I didn't build the bridge and who knows how long it's been there. (Evidently, PITA neighbor called and told them about the foot bridge). I contacted the Drain Commission and told them what I was planning to do. Whoa!!! No sirree, got to have an "engineered" bridge, PE stamp on drawings, concrete abutments, yada, yada, yada.

Ended up getting a permit from them (cha-ching), buying a culvert through them (cha-ching), getting tons of sand for back-fill (cha-ching), getting gravel to for the topping (cha-ching). I'm happy with the culvert (it was cheaper than their "engineered" bridge), I'll never have to worry about weight of something on it, but the point is that our govt. (federal down to local level) knows only one way to do things and that is in the most obstructive, nonsensical, contrary way. If you, as a landowner want to do A, they'll think of 10 reasons why you can't, and suggest you do B. I see this all the time at Planning Commission and Zoning Board of Appeals meetings.

And you having to appeal to an "environmental" agency adds another level on nonsense to your journey. As far as I'm concerned, every EPA agency should be shut down. They're just a bunch of power hungry bureuacrats who could care less about common sense.

Can the easement be revoked? I'd think if it's actually recorded against the deed at the registry then you would have some recourse to prove it exists. Sounds to me that in this situation they don't want to find the paperwork... thus there is no easement... thus tha wata always run' 'dere...
Short story. You screwed.
I'd also suspect that if you want to make an issue of it they'll just expropriate it anyhow if the powers that be feel they want a creek there on your land.
Why the previous owner would agree to this scheme is beyond me...

Rod

A thought!
Find a species of animal or plant that is moderately rare or endangered in the froested zone being eroded. Have an expert on that topic provide a statement that erosion of the creek into the forested area can and will cause loss of habitat for that plant/animal. Indicate that due to the city's rechanneling of the creek, that this needs mitigation. Be willing to be th responsible party to place approved riprap, or shoreline stabilizing material for protection of this habitat. Sometimes the essence of a solution is the use of powerful self inflicted regulation they would make you conform to if you had modified the channel. Jim